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Full text of "ERIC ED251229: Toy Safety Act. Hearings before the Subcommittee on the Consumer of the Committee on Commerce, Science, and Transportation. United States Senate, Ninety-Eighth Congress, Second Session on S.2650 (June 8 and July 2, 1984)."

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DOCUMENT RESUME 



PS 014 769 

Toy Safety Act. Hearings before the Subccmmittee on 
the Consiuner of the Conwiittee on Conunerce, Science, 
and Transportation. United States Senate, 
Ninety-Eighth Congress, Second Session on S.2650 
(June 8 and July 2, 1984). 

Congress of the U.S., Washington, D.C. Senate 

Committee on Commerce, Science, and 

Transportation . 

S.-Hrg. -98-971 

Jul 84 

lOOp. 

Leyal/Legislative/Regulatory Materials (090) 
MF01/PC04 Plus Postage. 

Accident Prevention; Children; ^Consumer Protection; 
♦Federal Legislation; Federal Regulation; Hearings; 
Injuries; *Safety; *Toys 

Age Appropriateness; Congress 98th; Hazards; Labeling 
(Of Objects); Product Recall; *Product Safety; 
Proposed Legislation 



Passage of the Toy Safety Act of 1984 (S.2650) would 
allow the Consumer Product Safety Commission (CPSC) to order the 
immediate recall of toys and children's articles that create a 
substantial risk of injury to children. The CPSC would no longer be 
required to issue a final rule banning a hazardous toy or article 
before it may bvtgin a recall procedure. Nor would the CPSC be 
required to complete a rule-making proceeding to transfer its 
regulatory functions from one act to another. (Both rule-making and 
transfer processes require months or years to complete, thus 
permitting a hazardous product to remain in the marketplace.) 
Witnesses appearing before the subconmii ttee represented governmental 
and nongovernmental agencies, state legislatures, manufacturers and 
distributors of children's products and their associations, health 
organizations, consumer advocate groups, day care providers, and 
institutions of higher education. Testimony centers on (1) the 
rationale for the act; (2) characteristics of hazardous and safe toys 
and articles; (3) injuries to children resulting from hazardous toys 
and articles; (4) manufacturers' attempts to make toys safe; (5) 
problems of recalling unsafe toys; (6) potential problems created by 
the act and its recommended changes; (7) age labeling on toys; (8) 
Wisconsin state provisions for protecting children from unsafe 
products; (9) procedures for implementing the act; (10) broader 
issues of product safety; and (11) positive results and improvement 
of the product recall process. Texts of proposed legislation are 
included in this report. (RH) 



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* Reproductions supplied by EDRS are the best that can be made * 

* from the original dociunent* * 
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ERIC 



ED 251 229 
TITLE 



INSTITUTION 



REPORT NO 
PUB DATE 
NOTE 

PUB TYPE 

EDRS PRICE 
DESCRIPTORS 



IDENTIFIERS 



ABSTRACT 



TOY SAFETY ACt 

WATIOWAi IfiSTmiTt Of EOUCATIOW 

fOuCATlONAl RESOURCES tNFORMATION 

CtNUR (ERfC» M^«* chH*.^ HAv*. niiHJtt «^ 

HEARINGS 

«M 



fm?nt tft» not fiin< 



BKf'X>RK THE 

srHCOMMITTKK ON TUK COXSr.MKK 

or THi-: 

COMMITTEE ON COMMKR(^E, 
SCIENCE, AND TRANSPORTATION 
UNITED STATES SENATE 

NINETY ElcaiTH (X)NGRESS 



ON 



CO 

1H 



S. 2650 

TO KN Xiil K Till-: CUNSUMKR PKOIHKT SAKCTY (X)MMISSI(>N W I'KO 
TOT TUK VVin.K BY ORDKRINd NOTU K AND RKI'AIK. RF.PI.A< KMKNT 
OK RKFl NH OK ( KKTAfN TOYS OR ARTK l.F.S INTKNIlKD I--OR I'SK BY 
flllinKKN IF SUC H TOYS OR AKTU'l.F-S (RKATK A SUasTANTlAI. RISK 
OF IN JURY TO ( llll.!»KFN 



Jl'NF N AM) .IIM.Y L'. VJKl 
St-rial No. 98-94 



I'niitcd (<ir \Uf us»- of the 
< .iiimiino' oti ( oniHUTfi-, Si HTu-*', ;ind Tninsfxirtiiiioti 



ERIC 



2 



cx)MMnTEE ON combie::^^ science, and transportation 

BOB PACKWOOD, Ore^cm. Chairman 



BARRY GOLDWATra, Arwma 
J1>HN C DANFWmi MiaMwri 
NANCY LANDON KASSEBAUM. Kansaa 
LARRY PRESSLER, South Dalw^ 
SLADE GORTON. Wa^ii^jUw 
TED STEVENS, Alaska 
BOB KASTEN, WiacoBBin 
PAUL S TR1BIJ2, Je . Virginia 



E31NEST r HOLUNGS, South Ofvliiui 
RUSSELL B LONG. UmisiaiiB 
DANIEL K INOUYE, Hawaii 
WENl^^iX H- TORD. Kentmrky 
DONAIH W. RIGGLE, Ja^, Michigan 
J JAAffiS EXm, fMm^B 
HOWELL HEFIIN, Alabama 
FRANK R IJ^UTENBOK;, New Jem-y 



OasALO J. KovACH, Chief Coansrl 
Ralm a EvBawTT, Mtmtity Chief CauHStl 



i^WXmUTtTKm ON THE iX>NSUMrE 
BOB KASrrEN, Wttscwwin, Chatrmatt 
JOHN C DANR)jnH M-««n WENWJIX H PORD. KrM^ky 



CONTENTS 



Opt'tiin^ statftnt'iit by S»n;itor Kastcii ^ 

0|it*nirii; Ntiitririfnl hv S'tiator HoUtn^s - 

IVxt ors 2*j:»o ' 

CHKONOUKlirAL LIST OF wrrM'issi':^ 
Ji nk \\m 

(ilm»nlHTM. David I . U'^ihlative dmvUir, Consumer Ffderatum (it AnuTua, 
Mark Silb*T^:rld. dir4t'tor. Wiishington oirirt*. and MichflU* Meier, counsel 

Tor ^owrnnient aftains. I'onsumen* Union '^'^ 

Pn'pari-d statements 

Mr (iretMitHTii 

Mr Silbergeld M\ 

(irtvnsher, f)r J<weph. chairman. I'ommittee on accident and poison pre%en 
turn, American Academy of Pediatrics; and Charles F. WilUams, vice presi 
dent of quality . safety, and intejifrity. Mattel Toys 7 
I>cK'ker, Aaron, counsel. Toy Manufacturers of America . . l^T 

Prepared t*tatement 

Stee%<*}s. Kobert F . IVputy Director. OfTice of (4)tiKumer Affairh; accompanied 

by Michael Stt»wart. (Jeneral Counsel 

Prepared statement ^» 

Steorts, Hon Nancy Harvey, Chairman. Consumer Pr*>duct JSafety C<mmHs- 

si<in. and Terreniv M S<'an Ion. i Commissioner l-J 
Prepiir*'d slatenwmf 

Ms St ♦M»rt«i 

Mr Scan Ion •^I 

0|ienin^ statenu'nts by Si'nator Kasten 4^5.7^5 

Ackermiin. Dr .Norlt*en M . former aHM**tant pr<»lessor. Sch«Kj| of Family 

R<»sourci*s and Ccmsumer fx'iences ^^l 

Brown. James I. . president. Wisconsin Consumers I^*2i|{ue 

Durand. Janice H . president. Pu//lel>ox 7X 

F^dnionson. Dr M Bruce. Department of Pctiiatrics, University of Wis^'onsin 

Hospital ^1 

(UHHintiHi. Hamv M , director. Sfitellite Child Care. Inc >^}> 

(Jrundle. Nancy, consumer rep<irter, WITI. TV -f-^ 

Haiiry. C;Hio!!t\ representing the Wisconsin Manufacturers AsMKiation 

Pre^Kired statement ''^ 

eiiinsfn. .Jane M. assistant adininistratcar. trad<* and consunuT pr<ite<ti<jn 

dm.-iiun, Wisconsin Department of Agriculture. Trade, and i c^nsumt- 1 Pro- 

lection. . 

Johnson, Dr Kenneth () . chapter chairman. Atnerican Academy of Pedi- 

atrii's 

Lu/i. Aiden I. , former executive dir<*ctor. Concerned Consumers I/ea^iiie ^n 
Montgomery. Dr Wwin i» . Jr . chief of staff. Milwaukee ("hildern's Hospital t;f» 
Niihid. Df Kathryn P . Dt an Mt-dical Center. Madison. Wl >1 
Patralia. V^ct<»r P. KeK*<>nal Director, Consumer Pr«iduct Siifety Commissum 7'^ 
Klione. itUitiit. rf^isti*red nurse. Wtn* Care Day Care Nur^*y. Inc 
HoM'n/wei^. Pe^r^y A . Wisconsin State Kepn*s4*ntative 

KouleaU, I'atncja. rnan;i^'fr of consumer s4'rvic»*s and merchandisi' <jualjty 
;*s.*.tjr.n?ie trade protivfion. and private lalM»l. Ziiyre C^^rp .Vi 

nil 



EKLC 



IV 

Hvan. Marv K . iOti>»umft udvcK'ate. AriierKan TV and Appliancvs oi Madistui, 

m ' TO 

Si'ampini. iVaima, spetvh |iathi»to|;ist 

Showftb. IVan A , public illations dirvitor. Milwaukt»f Childrfirs Hu>pital . TO 
St4*<trtH. Ihm Nancy l!am»y, C'hairniiin, Consumer F'niduct SiifHy Commis- 

^i<ln U 

l*r«*p;irtHl stat«*m«*nt 

Vkf. Jon K . pri-vidrnt, Milwaukee (1ii!dren\s Hospttat 

Wimnrr. (itnirf^f, librarian Tl 

Wik>tr(»m. Jane A , din-ctur of consumer and public relations. Tar^H Ston»s M'» 

IVfpiirfd statenu»nt 

Ziarnik. Mar^'ar**! K . Deputy, Station of Knvironmental an<i Chronic DiM-UM* 
Kpidi»mM>U^v. Division of Hi-alth. I>e|>arttm*nt of Hoaltb i»nd Ifunmn Sfrv 

lc<•^ . . ■ 

ADDITIONAL ARTK LKS, IirrTKKS. AND STATKMKNTO 

Th.iui. (it-rahi. pn>ffssor, UniverMly of Wis40n?»in l>;iw Si'h<K>L on Iwhulf o! 

iht* i 't'ntvr tor Publtc Repre*H»n(ation, statement fHJ 



> 

ERIC 



TOY SAFETY A(^T 



t RIDAW JUNE 8. mi 

U.S. Senate, 

COMMITTKE ON COMMERCE, SCTIENCE, AND TRANSPORTATION, 

SUBCTOMMETTEE ON THE CONSUMER, 

Washington. /X'. 

The subcommittee met, pursuant to notice, at 10:07 a.m., in room 
25:i, Russell Senate OfTice Building, Hon, Bob Kasten (chairman of 
the subcommittee) presiding. 

Staff members assigned to these hearings: Marilyn Richmond, 
stafT counsel, and Loretta Dunn, minority stafT counsel. 

OPENINC; STATEMENT BY SENATOR KASTEN 

Senator Kasten. The committee will come to order. Today the 
subcommittee will consider legislation to expedite the recall of 
unsafe tuys and other articles intended for use by children. 

Under current law the Consumer Pnxiuct Safety Commission 
may order the recall of these products only after engaging in long 
and cumbersome procedures, and this in some cases can take years 
to complete. Because of a legislative quirk, it is often easier for the 
Consumer Product Safety Commission to recall products intended 
for adults that present substantial risks of injury than it is for the 
agency to recall hazardous toys and children's articles. 

It does not seem to make much sense, but the fact is that it is 
easier to recall a defective toaster or a defective iron or a defective 
hair dryer than it would be to recall a defective toy, a hazardous 
toy, a toy that could injure or even kill a young child. 

There is atisolutely no reason that it should take longer to rc»call 
toys and children's articles than it does to recall other consumer 
products. In fact, these are the products that ought to be removed 
first from the marketplace, since children are particularly vulnera- 
ble and often unable to protect themselves. 

Toys and children's articles that represent a substantial risk of 
injury should lie reiiiuved fruit) the market iis quickly as possible. 
S the Toy Siifety Act, will amend the Federal Hazardous 

Substances Act/ which by historical accident governs the proc^- 
dures for the riiall of toys and child-related articles. 

The bill will enable the Consumer Product Safety (^^mmission to 
order the immediate recall of toys and children s articles that 
rreate a Hubstantial risk of injury to children. The Consumer I'rod 
uct Safety Commission will no longer l>e rtHjuircHl to issue a final 
rule hanmn^^ a ha/;irdous toy or article bt»fore it may begin the 
<i%erall rival! pnui-efling Nor will the CI^: be required to com 



6 



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2 

plete a rulemaking to transfer its regulatory functions from one 
act to another. 

These procedures are lengthy* these procedures are cumbersome, 
these procedures only serve to unnecessarily delay removal of 
unsafe toys and other children's articles from the market. 

With this act, the consumer's interest will be better served and 
the child's environment better protected. 

I would like to welcome today our entire group of witnesses. 
Today we are going to be hearing from, first of all, the U.S. Office 
of Consumer Affairs, reprinting the administration. We are 
going to be hearing from the Consumer Product Safety Commis- 
sion, an independent a^ncy. We are going to be hearing from the 
American Academy of Pediatrics. We are going to be hearing from 
the Toy Manufacturers of America, from tne Consumer Federation 
of America, and from Consumers Union, 

We are particularly pleased to have with us today a representa- 
tive of the Mattel Co., who will describe the company's latest toy 
product innovation, an x ray visible additive for the plastics used to 
make children's toys. And I ought to say, we are particularly 
pleased that the representatives of the Mattel Co. have come all 
the way across the country in order to participate today in this 
hearing. 

Senator HoUings has an opening statement which will be placed 
in the record, 
('ihe statement and bill follow:) 

f am pleai44^ that hparings on S. 26f»0 have been scheduled so promjitly The wel- 
fare o( childrt»n has always been a m^r concern of mine I wa« one itf the princt|J€il 
sponsors iA the WIC proj^am— the women, infanta, and chtidren*s proK^f" which 
provide* financing for food purrhasea by pregnant and nursing women. Thm pro- 
grum helps to ensure that the nutritional neeoH of babies of low- income women are 
met 

S. 2^i5<) in another important step in protecting the health and ftafoty of children. 
Thi* bill will make it easier for the Conaumer Product Safety C^mmiMsion to nvalt 
toys which poae a danger to children. Toys ami other children*a prodact« that poae a 
Bube^tuntial risk of iniury should be taken ofT the market an noon m poi»uHe I un- 
derstand that this bill has the support of the (Vmsumer Product Safety Cbmmission, 
thf AdrnmiKtration. and the American Academy of PtsiiatricK It i« my htipi* that 
thi» hill will b(* ailed upon by the ( \>mm it ti*e ana tht* S*nat<* expeditiously. 



A hill to cnahlf the Consumer Pnxluct Stifety (xintmission to protect the public by 
(irdfrmg notice and n»pair, replacement or refund of i**'rtain l<iyn or articles in- 
tra dixl for by childn*n if such toys or articl*^ create a substantial risk of 
iMjur> Uf i hildreii 

Hr it etuu'ted by the Senate and House of repreitenia(n*en of the United Stateit of 
America in Con^mffs a^semhled. That this Act may be cited as the "Tov Siifetv Act 

of VJH-r 

SKf 2 Section 15 of the Feck»r«l Hazardous Substam^es Act ilf> U S1\ is 
afis'fided 

(l\hy redi^signattng subsections ^c), idl and <e) as subsections <d^ (ei. and (0, 
rt-sriectivfly; and 

by inserting immediately after subsection <bt the following: 
"icpc 1 J If any toy or other article intended for use by children that is not a banned 
hazardous suDstance creates a substantial risk of injur)' to children ^because of the 
pattern af risk, the number of toys or such articles presenting a risk, the severity of 
the nsk, or otherwisei and the (kMnmission determines lafter affiirdir^; interested 



ERLC 



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3 



peni4ms. including c<m»uiTH*r» aiid oorw^umer urKant7Miom, an opportunity for a 
h4*arinK» that notification is rt-quired to adequately protect the public from sut h toy 
or article, the Commit^ion may order the manufacturer or any dititributur or dealer 
of the toy or article to take any one or more of the following actions: 

**<Al To give public notice that the toy or article creates a Hub^tantial risk of 
injury to children. 

**(B» To mail such notice to each person who ifi a manufacturer, diHthbutor. or 
dealer of such toy or article 

"iC) To mail such notice to every person to whom the person giving notiiv 
knows such toy or article was delivered or sold. 
An order under this paragraph shall specify the form and content of any notta* re^ 
quired to be given under the order 

It ^ny toy or other article intended for use by children that is not a banned 
hazardous substance creates a substantial ri^ of iixjury to children (because of the 
pattern of risk, the number of toys or such article presenting a risk, the ^verity of 
the risk, or otherwise) and the Commission determine (after alToifxiing interested 
persons, including consumers and cor»un^r organizations, an opportunity for a 
hearing) that action under this parafp^aph is in tte public tntere^, the C^nyniasion 
may order the manufacturer, distributor, or dealer to take whichever of the follow- 
ing actions the person to whom the order is directed elects: 

*'iA} If repairs to or changes in the toy or article can be made so that it will 
not creaU» a substantial risk U injury to children, to make such repairs or 
changes. 

"iBj To replace such toy or article with a like or equivalent toy or article 
which does not create a substantial risk of it^jury to children. 

"iV) To refund the purchase piw of the to>* or aiticU? (less a reasonable al- 
lowance for use, if the toy or article has been in the poeeesston of the consumer 
for one year or more — 

'*(il at the time of public notice under paragrai^ iinAK or 
"iiU at the time the consumer receives actual notke that the toy or arti- 
cle creates a substantial risk of injury to children, whichever first occursi 
An order under this paragraph may also require the person to whom it applies to 
submit a plan, satisfactory to tlw Commission, for taking the action which such 
P<*rson has elected to Uke TIm? Cxmimission shall specify in the order the person to 
whom refuncfc* must be made if the peratm to whom the wJer is directed elects to 
take the action described in subparagraph (C^. If an order under this paragiyh is 
directed to more than one person, the Commission i^iall specify which person has 
the election under this paragraph. An order under this paragraph may prohibit the 
person to whom it applies from manufacturing for sale, offering for sale, distribut- 
ing m commerce, or importing into the customs territory of the United States (as 
defined in general headnote 2 to the Tariff Schedules of the United States*, or from 
doing any combination of such actions, with respect to the toy or article with re- 
spect to which the onk'r was isf»ued.'*. 

(b^ Section ir;(dMl> of the Federal Hazardous Substances Act. as redesignaU^d by 
sub«H>ction (ai of this section, is amended by striking "subsection <b»" and inserting 
in lieu thereof "hulwiection (b» or (c)". 

^ci Section IfndK^^ of such Act, as so redesig.iated by subsection (ai of this section. 
ifi amended by inserting 'toy." immediately before "article" whenver it appt^ars 

(df S<K:tion ITi (dM2» and UM of such Act. as m redesignated by Hulw4n:tum tu> of ihir 
seition. is amendt-d by striking "subwction <a> or <b»'* and inserting in lieu thereof 
"sulxM-cCiun (nK <h». or U*'" 

S<>nator Kastkn We will begin the hearing with Mr. Stwyes. 
who will hi' speaking for Virginia Knauer. He is the Deputy Direc- 
tor of the U S. Office of Cx)nsumer Affairs, and we aiv very pleat^nl 
to have you with us today, Mr Steeves. 

STATKMKNT OF KOKKKT F. STEEVtlS. DEPITY IHKK(T<IK. I S. 
OFFIt K OF ( ONSriMER AKFAIRS. A( ( OMPAMKH BY MICHAEL 
STEWART, C;ENER.\I. COrNSEL 

Mr. Stkkvi-is Thank you, Mr. Chairman. 
Michael Stewart, our general ct)unsel, is with me 



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4 



ViFffinia Knauer developed an urgent dental problem yesterday 
and sends her personal r^rets that she could not be here personal- 
ly to send her testimony. 

Senator Hasten. We just hope that she is recovering, and on 
behalf of the committee we vant to wish her well. 

Mr. Steeves- The dental problem has been resolved, but she just 
does not speak very well this morning. 

We appreciate tnis opportunity, Mr. Chairman, to appear oefore 
you and to present the U.S. Office of Consumer Affairs position on 
S. 2650, the Toy Safety Act of 1984. We commend you. Mr. Chair- 
man, for your introduction of this bill rnd the subcommittee for 
these expeditious hearings. 

This is very basic legislation to correct a very serious deficiency 
in the current laws designed to protect our Nation's children from 
toys and other articles intended for use by children that present a 
substantial risk of iryury. The deficiency is the apparent legislative 
quirk which makes it often easier for the CPSC to recall products 
intended for adult use that present a substantial risk of injury 
than it is for CPSC to recall hazardous toys and other children s 
articles. 

Ironically, this situation appears to be the result of an early, 
heightened congressional concern over toys and other child prod- 
ucts, which made these products subject to regulation only under 
the Federal Hazardous Substances Act prior to the establishment 
of the Consumer Product Safety Act. 

Though CPSC now has two methods of recalling hazardous toys 
and other children's products, both are unnecessarily cumbersome 
and timcMTonsuming, and both are inferior to the authority now 
held by CPSC to protect the public concerning adult products. 

My remarks are not meant to suggest that the Commission never 
receives cooperation during its negotiations. In fact, the Commis- 
sion s negotiations sometimes result in quick (imperative responses. 
My remarks are aimed at the regulatory situation imposed on the 
(x>mmis8ion when persuasion is not succe^fui and some mandatory 
action is required. 

The first of these two methods is under the Federal Hazardous 
Substanc<»s Act and requires the CP^ to initiate a rulemaking 
procei>ding, which can take up to 2 to 3 years to secure the final 
rule necessary for recall of a hazardous toy or children's product. 

The second way for CPSC to proceed to recall an unsafe toy or 
children's article is a transfer under JiO(d) of the Consumer Product 
Safety Act. Even though it would take less time— usually, based on 
the Cx)mmtssion reconds, between 4 and 14 months— this cumber- 
some procedure is just as unacceptable from a regulatory stand- 
pt>int iii^ the first procedure is a transfer under 3(Kd) of the Con- 
sunier Product Safeiy Act, 

I^irticularly, when CPSC does not have to go through this type of 
a rulemaking proceeding before securing recall of mc^t products in- 
tended for adult use. The Toy Safety Act will amend the Federal 
Haziirduus Substances' Act to allow CPS(> to recall quickly those 
toys that present a sub'jtantial risk of injury. 

No longer would a long-awaited final rule which bans a hazard- 
ous toy or article be required before the CPSC may recall the prod- 
uct that is in question. No longer would the CreC be required *o 



ERIC 



5 



complete the 'MM) transfer proceeding using what amounts to regu- 
latory fast footwork to transfer its r^ulatory functions from one 
act to the other. 

Our Nation s children deserve better than these current proce- 
dures^ which are lengthy, unduly cumbersome* and function only to 
delay unnecessarily removal of unsafe toys and other children's ar- 
ticles from the market. 

This administration has sought from its outset to make sense of 
the regutatorv morass which it initially found in many areas of 
Federal involvement in the marketplace. Over the imst 3-plus 
years, many unnewssary economic rules and regulations have been 
modified, curtailed, or removed. But we have always especially pro- 
tected those rules and regulations which saf<^uard our citizens* 
health and safety. 

The Toy Safety Act address a situation which cri^ out for 
action because our children's health and safety are at risk. We are 
unaware of any opposition to your proposal, Mr. Chairman, by in- 
dustry, by consumer groups, or by other governmental agencies. 
We urge the subcommittee to act promptly to move the bill for-^ 
ward for full committee approval and ultimate positive action by 
the Senate. 

Thank you, Mr. Chairman, again for this opportunity to appear, 
and I would be pleased to answer any questions that you may have. 
Senator Kasten. Thank you vefy much. 

Are we to understand that your support of this bill is an official 
White House position, or are you today appearing only on behalf of 
the Ofllce of Consumer Affairs? 

Mr. Steeves. Mr. Chairman, on propc^ed pending legislation, our 
testimony is reviewed by OMB in the normal process to establish 
an administration position, and that was done in this case and our 
position does in fact represent the official White House position. In 
fact, in our discussions with the OMB examiners they indicated to 
us that we could proceed with assurance that if this bill arrives on 
the President's desk they would recommend that he sign it. 

Senator Kasten. I am hopeful that it will be arriving on the 
President 8 desk relatively quickly. As you know, ♦here is a com- 
panion bill that was introduced by Congressman Waxman, I think 
on the same day that I introduced my bill here. He has already had 
hearings and we are hopeful that they are going to be proceeding 
at least through committee action. 

Depending on how everything goes today, and I am optimistic 
that we will have strong support from all of the people testifying, 
we are hopeful that we will have this bill on the markup schedule 
on Tuesday next and we will be able to move forward at least 
through committee action here. So I am hopeful that we will be 
able to move forward and get it to the President s desk, and I am 
pleased that you indicate to us that he will sign it. 

Mr. Steevks. So far the news has been ven^ encouraging. 

Senator Kasten. With your Consumer Office, are you undertak* 
ing any other initiatives or any new initiatives or anything that we 
should know about in the field of children's safety? 

Mr. Stkevkb. We have been focusing, Mr. Chairman, over the 
last several months on counterfeit products, consumer products 
throughout the market, and in that connection we are watching for 



Q ■ /MO 84 - J 

ERIC 




<i 

evidence ol counterfeit or knockolT toys or children's products? 
which may pose dangers to users. 

As you may know, the counterfeits are flooding the market in 
consumer prciducts. We have a display going on now in New C)rlc»- 
ans; concurrent with thf World's Fair showing a wide range of 
counterfeit products, from children's products to ciothmg to auto- 
mobile parts to airplane part«. And the counterfeiters have copied 
everything from ET dolls to toy trucks and cars. 

Our information in case studies indicates that once a particular 
toy is successful there are manufacturers, often foreign, sometimes 
domestic, which flood the markets? with nearly identical products 
that are called knockoffs. Battery poweted toy cars are particularly 
hard-bit, for instance, and stomper cans by Shaper Toys is one 
we've been looking at in the last several weeks. 

Thus far the experts we have talked to have not b H*n able to 
identify a safety problem with counterfeits or knockoiTs. But the 
potential is very, very great in that marketing product area. 

Of courst*, we have very good and cordial relations with the Con- 
sumer Product Safety Commission, with the Chairman and its 
Commissioners, and as soon as we would develop any evidence* of a 
safety problem, I am sure that we would pass that information on 
to them for appropriate rc^latory action. And we will also pass on 
that information to you, Mr. Chairman, and to Mr. Waxman in the 
House* committee. 

Senator Kastkn. Well, we are anxious to continue to work with 
you We have enjoyed the good working relationship that we have 
had with your office and with Virginia Knauer and we look for- 
ward to continuing to do that. 

Thank you very much for your testimony here this morning. We 
look forward to working with you. 

Mr Stekves Thank you, Mr. Chairman 

(The statement follows:] 

Statkmknt or VimnNiA H Knaitkr. Strc'ial Aovn^Kii Tr> thk Pkksii>icnt rote 

(*<>NsrMKIt Arf'AIIlS AND DtftK^TOtt. U.S OfTirKK or CV»N.H<Mim ArTAIHS 

Thank you, Mr (1»ainnan. for the opportunity !o appear today befort- thv CVm- 
sunier Subt*«mmitU«e and preftent the United Stateti CWikv of iUmnum^r AfTairH' ten- 
timoriy on S the "Toy Safety Act of IHM." 

Wr Vomniend you, Mr rhairman, for your introduction of thif* bill, and wo uIho 
commend ihih Subcommittee for these expeditious hearings ThiH is very basic \e^u^ 
lation to correct a v«»ry Hertoua deficiency in current laws designed to proU-ct our 
Nation's children from toys, and other articles intended for ujse by children, that 
pn-s^*nt a substantial risk of injury 

The deficiency I ^(leaic of ih the apparent leRwIative quirk which make» it iiften 
easier for the ( onnumer Product Safety <ximmu«i*on to recall products intended for 
adult use, that pres(*nt substantia) risks of injury, than it ts for t'PSi' to mniU ha/- 
ardouit toys and other childrens' arttckfi. 

Ironically, this situation has come into being out of an early, heightened (<ingr<-s- 
sKmal coni'ern over toys and c^her child products safety, which made these products 
suhjei*t to regulation only under the Federal Hazardous Substances Act, the i*stab- 
hshtnent of (1^* under the Clonsumer IVodui't Safety Act 

The renuit is that the CximmiiiHKm mm has two methods of recalling hazardous 
toy*» and other chifdr^ns* prodiarts. both of which are unne(^esMiril> cum^>ers«ifne and 
time ctmsuming. and lioth of which are inferior to the authority now held by CPSC 
to pmtivt the public concerning adult prixJucts 

I would tmly iM here that my n^niarks are ni4 meant to sugg(*st that CI^SC* never 
achieves iXKiperation during ncigotiations In fact, the IVimmission's negotiations 
somHinM*s H'Hult in quick resp*inse Rather, my remarks are atmt^ at the regulatx>- 



ERJC M 



i 



ry situation ifn|Mts«\J on ('I*S1' when pi'n4Uiu*ton is not sum»ssful and manclat<»ry 
itctton if* requin»d. 

The first of tht-st* two methods b under the Fedenil Iluzarduuii Substances Act 
tFHSA» and riH|uin*» the C'I'SC' to initiute a rulemaking proceeding iwhich can take 
two to thw yearsi to «ecurv the final rule necewiary for recall of a hazardous toy or 
children'ft product Under thiH rulemakinK. the CVSC may not even begin a recall 
prodding until it h;%s ftnaltzed a rule banning the toy or article Thiv creutl'^ the 
dangerous situation where the huzardouii toy or child rens' article can remain on the 
market during the time it takes to complete procc*edtnKs. 

There a heixmd way for CPSC to proceed to axrall an unsafe toy or childn^nw' 
article, but it is just am unacceptable from a regulatory standpoint the first way - 
even though it would take leas tin^. between four and H months. This cumbennime 
pnicedure i» a "transfer*' rule under 'MXd) of the Contiumer Product Safety Act. Jui^t 
aM It mHinds. the (*omniis8ion isHUeH a final l^d) rule, following mitice and public 
comment, finding that it is in the public interest to regulate the risks of injury from 
the haz;irduus toy or article under the (k>nsumer Product Safety Act rather than 
Federal Hazardous Substances Act. Unfortunately, white these days, weeks, and 
months go by. a hazardous toy or childrens' article can remain on the market. This 
situation i» totally unacceptable; particularly, when the CPSC' does n<^ have to go 
through this rulemaking scenario before securing recall of most products intend4*d 
for adult use 

The Toy Safety Act" will amend the Federal Hazardous Substances Act to allow 
the C onsumer Priiduct Safety Commi.«»ion to nfcall quickly toys, and other articles 
intended for use by childn»n. that present a substantial risk of injury No longi-r 
would a iong awaiti'd final rule which bans a hazardous toy or article be required, 
befon' the CPSC' may begin a rtcall proceeding. No longer would the (^PSt^ be re- 
quirY*d to complete ti *"Mkd} transfer" rulemaking proceeding, using what amounts to 
rt*gulatory f;ist footwork, to transfer its regulatory functions frjm one Act to an- 
other 

CKir Nation's children deserve better than these current procedures, which an* 
lengthy, unduly cumbersome, and function only to delay unnecessarily the nwoval 
of unsafe toys and other childn'ns* articli*s from the market. 

This Administration has sought from its very outset to make sense* of the reguia* 
t4>ry nuirass which it initially found in many areiis of Ft*deral involvement in the 
marketplace. Over the past three-plus years, many unnecessary ettiiKKnic rules and 
reguUition^i have lieen modified, curtailed or rem^ived; but. this Admintstruti<m has 
alwav's especially protected those rules and ref^ulations which safeguiird our citi- 
zens' health and safety The "Toy Safety Act" addresses a situation which cries out 
fur mtion beiaus4« our childrens' health and safety an* at risk. 

We are unaware of any opptsiitkm to S by the industry, ainsunier groufw. 

c<Kisumers or government agencies 

We urge that the Subc^immittee act pmm^ly to move S 2^*^^^ forward. f<ir full 
CommitfK<* iippmval. and ultimate, positive ^Kiion by the Senate 

Mr Chairman, thank you. ona* again, for this opportunity to testify <«i S 
and I v^oulJ Ik* pU*ase<l to answer any qUt*stions you or other Memlx^rs may haw 

S^'fiator Kastkn. Our next two witnes;s(*s will Hj^pear ti^ether iis 
a iKinel: Hr Jc>s<*ph Ctreenshi^r and Charles Winiams. First we will 
hear from Dr. Jos<'ph (Irwnsher, who the chairman of the com- 
mittee on acvident and poison prevention, the American Academy 
of Pt*diatrics 

Dr. (irttMi>hc'r. 



STATHMKNTS OF »K. JtlSKI'll tlKKKNSHKK. ( IIAIK.MAN. COM.MIT- 
TKK ON Ac t IDKNT AND POISON PKKVKNTION, AMKKICAN 
A< AOKMY OF PKDIATKK S: AMI ( IIAKLKS F. WiLiJAMS, Vl< K 
FRKSIDKNT OF Ql AIJTY. SAFKTV AND l\TKi;RITY, MAriKL 
TOVS 

Dr, (iKKKN.sHKK. Mr. Chairman, thank you for allowing the Amer 
ican Atadeiny of Pediatries, the Committee on Accident and Poisoti 
Prevention, to prc^s^'nt its support of the Toy Siifety Act of lUH I. H 





8 



Piay i« an important part of children growing up. Children have 
been active, imaginative and innovative in a variety of play situa- 
tions since antiquity. Toys give children an opportunity to develop 
and discover themselves through experimentation and participa- 
tion, and it gives them an outlet for their energy 

Unfortunately, the joy of play b frequently marred with disabil- 
ity and occasional fatalities. The toys that play such an important 
role in their development can also he very harmful to children. 

When we look at the numbers, they are staggering. There are 
over 150,000 different toys that are produced yearly worldwide. 
There are 1,500 toy manufacturers that produce these toys. The toy 
industry is the largest producer of automobiles in the world. It pro- 
duces 150 million automobiles each year for children to play with. 
In the United States, 83,000 different toys are imported each year. 

In the process of our children interacting with these toys, the 
Consumer Product Safety Commission has estinmted that 123,0(K) 
children each year injure themselves and require emergency room 
treatment. 

Senator Kasten. Would you repeat that? A total of 123,000 re- 
quire emergency room treatment. 

Dr. GREENSHeai. Correct. We do not know how many hundreds of 
thousands seek mediaal aid from their private physicians on top of 

that. ^ 

!n 1982, there were 17 fatalities related to toy iiyunes. That 
nuniH" , although it sc mds staggering, is really 23,000 less thai, 
the I )7 figures. So we have made a little bit of progress in the 
in^u - ' "^.^Id in toys. 

Thfc (x-nsumer Product Safety Commission, as has been men- 
tioned, has authority to ban toj-s under the Federal Hazardous Sub- 
- lances Act, but that procedure is so cumberao-ne that only 18 toys 
were recalled in the last year that I have seen statistics on. That 
includes IH different models as vtrell. 

The Commiseion has set safety standards for toys that are elec- 
tric in nature, tor toys with sharp points, that have sharp cutting 
edges, that have lead paint, that have small paits in them. But it is 
the manufacturer's responsibility to assure compliance with these 
requirements. 

As has been stated, our belief that there is a great deal of control 
over toys is really not correct if one recognizes how cumbersome 
the process is to recall these toys. The Toy Manufacturing A^ocia- 
tion voluntarily and in cooperation with the Consumei Product 
Safety C^mmujsion and in the past in cooperation with our commit- 
iw. has passeti safety standards for toys, but many of the toy man- 
ufacturers are not members of the Toy Manufacturers Association. 

Now, the question of what toy hazards are still available in the 
marketplace. If we l<x>k, the No. 1 problem involving danger from 
toys is the risk of aspiration and ingestion of small parts of toys. 
Toys should be large enough so that children cannot swallow them 
and choke on them. The toy should not come apart or be easily 
shattered. 

Toys for children under 3 years of age should not have small 
parts. They should not fit into an established standard truncated 
cylinder that the Consumer Product Safety Commission has devel- 

l.i 



9 



oped. This measures 1 Vi inches in diameter and then graduates in 
height from 1 to 2Vi inches. 

Small plastic parts in particular have been very burdensome to 
us. The problem with small plastic (mrts of toys in the fmst was 
that they were not x ray visible. If a child ingested one of these or 
if a child aspirated one of these where the piece would go into the 
airway and the child was taken to an emergencv room and an k 
ray was taken, this piece would not be visualized and if the child 
was not in a great deal of distress he would frequently be sent 
home, only to be presented a few weeks later with recurrent pneu> 
monia. 

At that time if the mother recalled the episode and mentioned it 
to the medical personnel caring for her child, they would recognize 
that there was a possibility of a pUu^c piece being lodged in the 
lungs and the child would nave to be bronchiscoped. Frequently to 
our surprise we would fish out various plastic pieces from the 
airway of these children. 

Mattel Toys, in cooperation with the Accident and Poison Pre- 
vention Committee of the Academy of P^iatrics, recognized this 
need and, as Mr. Williams will tell us later, has developed a plastic 
that can now be x ray visible, and we hojpe that this wul be a great 
advance in the morbidity and mortality of children aspirating 
small parts, and I was very happy to have partkripated in this. 

Now, the second major pn^Iem of toys that relates to aspiration 
and ingestion is the mislabeling o£ toys or the lack of labeling of 
toys for small children. As far as lack of labeling, what frequently 
happens is toys intended for older children find their way into the 
reach of their smaller siblings, who aspirate ^e pieces from it. 

As far as labeling is concerned, my wife went out on a shopping 
spree last night and came up with a few toys from a local store, 
what I have got here are some wooc^n to3rs that are produced in 
France. There are two labels on here. One says that this i^ssed the 
requirements of safety of the French regulatory agency and the 
other one says that this toy b not to be used for children under 36 
months of age. This was benight yec^rday in Manhraset, NY. 

The only problem with tii^se labels is that they are in French. 
Now, our population is sophisticated, but 1 think this is asking a 
little too much. There is no label here in English indicating that 
this could be hazardous. Yet there is very good warning on here for 
French pai^ents and French children. 

The other toy is a little toy that is imported from China. There 
was a flood of these that came on the market last year toward the 
Christmas season. This is a little duck that you wind up that 
swims. If you feel this duck you will feel it has got rough edges 
that can catch and cut children. 

The smaller children getting hold of this will mouth it. Small 
children investigate their environment by sticking stuff in their 
mouth and they are going to wind up injured with this. There is no 
label on this and nothing has been done. 

This little ice cream man also comes from China. He is adorable, 
he moves very nicely. He sells very cheaply. I think he sells for 
$il.2r). It is very hard to get an American toy for that price. 

There are a few problems with him. With very little effort his 
head comers off and a small child can aspirate and hoke on this. 



ERIC 




This would be a beautiful fit in his mouth and choke him to death. 
And the rest of this, if you feel, wiU come apart very rapidly 

There was another toy that had a cyclist with it. The mother 
that brought me that toy also brought me this. These are the partjs 
that were left over after 1 day of play with it. This is what's still 
available on the marketplace and why we need to pass this law. 

New and pcrtential hazards that are still around. We have all 
known that things like deflated balloons and plastic bags were haz- 
ardous to children for y^rs. With the innovation of the Cabbage 
Patch Dolls, we found out that they now come with disposable dia- 
pers. We also became aware that the dispwal diapers are a cause 
of choking in children, and this is «)mething that we would like to 
see avoided in the toy area. 

It is bad enough to have this as a potential hazard in their dress 
area where they are cared for, but to put it in the area where they 



Other injuries that remain to be faced are bum and electric 
shock from toys. Catch iruuries we have spoken about. Explosions 
and poisonings still occur from toys, as do lacerations. Noise injury. 
There are toys that produce noise of over 100 decibels that are inju- 
rious to hearing- Puncture and piercing iiyuries can ctill occur 
from toys, and if one feels the e<i^es on here these will certainly 
puncture the skin without any trouble. Projectile injuries exist, as 
does strangulation. 

The strategies for preventing these. We are trying very hard to 
have an education campaign. Both the Consumer Product Safety 
Commission and <Mir committee are working on this. But this is in- 
sufficient. We need this law to give the Consumer Product Safety 
(bm mission teeth to enforce it. 

We also need a Consumer Product &tfety Commission that has 
adequate funding to enforce the law, Mr, Chairman. 
Thank you. 

Senator Kasten. Doctor, thank you \ery much. 

Our next witness on this panel is Mr. Charles F. Williams, who is 
vice president for quality, safety, and integritv of the Mattel Co. 
And I am particularly pl^iaed, Mr. Williams, that you are with us 
this morning as a representative of your company and also as a 
representative of a toy manufacturer who obviously has shown an 
extraordinary amount of leadership and concern over the issues 
that we are addressing here this morning. 

So I, on behalf of the committee, would like to commend and con- 
gratulate you for the work that you are doing. We are asking you 
to testify here this morning as an example, frankly, of the kind of 
work that we are hopeful that we can continue to encourage. So we 
are very, very pleased that you have come from California to 
appear before us this morning, and it is a pleasure to introduce 
Charles F. Williams from the Mattel Co. 

Mr WiLUAMS. Thank you very much, Mr. Chairman. It is a 
pleasure for me to be here. It is a pleasure for Mattel to be given 
an opportunity to testify at this hearing. 

My name is Charles F. Williams. I am vice president of quality, 
safety, and integrity for Mattel Toys, which is headquartered in 
Hawthorne, CA. I joined Mattel in 1962 and have been responsible 
for the company's product quality and safety pn^nm since 1%J^. 




ERLC 



11 



My purpose today is to describe the development of a radiopaque 
or X ray visible plastic part in toys as a solution to a safety prob- 
lem affecting young consumers. This prMram illustrates how in- 
dustry and the medical profession can work together for the public 
benefit. 

We at Mattel believe that safety b the most important compo- 
nent of our products. In the early 1%0's we formed a department 
of product safety which soon became, and still remains, a responsi- 
ble engineering group with the authority to cancel any toy project 
that fails to meet our rigorous requirements for safety. 

We require premium materials in our product design specifica- 
tions to make toys more safe and more durable. This quality grad- 
ing means that toy^ last longer, stay safe, and reduce warranty 
costs, thereby proving that safe products do net necessarily in- 
crea^ the product cost* Quality materials also provide an increased 
play value for children. 

Toys intended for o!der children are scrupulously monitored for 
safety and integrity, but toys intended for preschool and infants 
must meet even more demanding requirements. 

It is generally accepted that older children can safely manipulate 
small parts that might be designed into their toys* These small 
parts are legal and are in wid^pread use* However, under the 
Code of Federal Regulations accessible small parts are forbidden in 
toys intended for children under 3 years, 36 months of age. 

Nevertheless, small foreign objects can find their way into the 
mouths of the very young, in some cases the objects can be ingest- 
ed into the digestive tract. Frequently they pass through the body 
and emerge uneventfully, as most mothers can attest. 

Yet there ure documented cases where the movement of the 
small parts through the body can be impeded* They may dwelt long 
enough to cause damage to the esophagus or other internal organs 
without demonstrating immediately chnical symptoms which may 
make the parents aware that the child is in a poor condition. 

In other instance, the foreign bodies can be aspirated into the 
respiratory tract, where they have a potential for more image. 
Sometimes the presence of the cAject Is not apparent. Only when 
the lung rebels with an abscess, a collapse or even pneumonia are 
the parents and physicians alerted to action. 

When a child seems to have ingested an object, he or she is often 
rushed to the physician's office for x rays. Too often the developed 
% rays fail to indicate the presence of the offending item in the 
child's lungs or stomach. A false negative observation occurs be- 
cause the part^ may not be x ray visible. 

This difficulty had long concerned members of the Accident and 
Poison Prevention (Committee of the American Academy of Pediat- 
rics. At a meeting in Toronto, Canada, in the spring of 1979 the 
C(immittce agreed that the medical profession's most frequent and 
serious safety problem with small parts for toys was the inability of 
thc*t5e parts to register on x rays. 

The committee asked if some pr<^ram could be developed to 
make plastic parts x ray visible and invited Mattel to become in- 
volved in xploring solutions to the problem. Dr. Joseph ()re<»nsher, 
on my left here, has been a member and currently is chairman of 
the Accident and Poison Prevention Committee. 



EKLC 



i2 



Mattel accfpted this invitation. Our chemical, mechanical, and 
tooling engineers began researching the feasibility of formulating 
an X ray visible plastic material that would be completely safe, 
would not reduce the life of our a)stly molding and prowssing 
tools, could be made available worldwide, and would not signifi- 
cantly increase the cost of doing business. 

Many series of tests were conducted with different materials 
until we selected barium sulfate as the optimum candidate. This 
material is widely used by the medical community as an opacifier 
in x-ray examinations of the gastrointestinal tract. It is an insolu- 
ble material which, encapsulated by a molding into a matrix of 
molten plastic, becomes the basis of our small parts. 

In the course of our tests, we were given the green light by toxi- 
cological consultants. Further chemical and physiolc^ic^il testing 
proved the formula to be biologically safe. Mechanical tests of the 
physical properties were exceptionally rewarding, even at the re- 
quired levels of 10 percent barium sulfate by weight. 

Our most stubborn problem was one of aesthetics. With the addi- 
tion of barium sulfate, the finished parts persisted in looking like a 
severe case of measles. This was overcome by prwessing techniques 
which we translated into n.anufacturing specifications when the 
procedure was perfected. 

At appropriate intervals we discussed our progress or our diffi- 
culties with the Accident and Poison Prevention C>)mmittee of the 
Academy of Pi*diatrics for their information and counsel. 

We introduced the. x ray visible parts into our UW2 and 1983 
product lines in increasing numbers. This year we expanded the 
program to introduce the process into al! of the 19S4 new products 
that contain loose smalt parts. 

As a result of this development prc^ram, physicians now can 
identify and locate with x rays these small plastic pari- that have 
hei*n ingested or aspirated. This capability enables the j^hysician to 
diagnose and treat the patient more efTectively, at a lower cost to 
the consumer. It also redua?s worry for the child, the parent^ and 
the physician. 

The nrsuits of this program were announced 10 weeks ago at the 
spring mt*eting of the Academy of Pediatrics in Phoenix, AZ, by Dr. 
H. James Holroyd, past chairman of the Accident and Poison Pre- 
vention ('ommittee. This paper was entitled "Aspiration of Newer 
Radiopaque Plastic Part«." 

ImmcnJiately after this meeting the president of Mattel Toys, Mr. 
(tienn Hastings, announced that the Matte! process, complete with 
s{>ecifications, was available free of charge to any toy manufacturer 
or |)r<Kiucer of small plastic items. The ri*sponw has been gratify- 
ing. 

Wc» iH'lieve the success of this program illustrates how c(K)pera- 
tive efforts by industry and the mi*dical pn)fi»ssion siTve to bi^nefit 
children her<* and abroad. 

Thank you very much. 

Si^nator Kastkn. Mr. Williams, thank you. 

I think that the cooperative efforts betwwn the mi^dical profes- 
sion and the industry, pfirticularly Mattel, are certainly to be com- 
mendi-d. I think that your development, Mattel's development of 
the X ray visible plastic and also >our willingness to share this 



17 



13 



technology with other industry members, I think that is particular- 
ly significant. It represents a real breakthrough, and clearly it will 
save the lives of many children. 

But also I think it demonstrates the kind of ax>perative atmos- 
phere that we are working to try to ratablish between industry and 
the private sector, the peaiatricians» and other groups, and also the 
Consumer Product Safety Commission and, frankly, the Congress. 

I just would like to ask both of you ewentially the same question, 
and maybe, Mr. Williams, you can b^in. Are there other kinds of 
cooperative industry safety efforts that are currently underway? 
Are there other things that the two of you are teaming up o.i after 
this significant success? 

Mr. wiLUAMS, As a matter of fact, there are other pn)^ctD tinLi 
are being undertaken now. What we have done; we have relied on 
the American Academy of Pediatrics to give us a new list of prior- 
ities that they see from {^tients appearing in their offices. And 
based on that, we have e^^lished then projects that are ongoing, 
that we are undertaking, that we hope will come to fruition iii the 
near future. 

Senator Hasten. Dr. Greensher, C£m you be more specific, pc^i- 
bly, on some of the problems that you are finding now? 

Dr. Greensher. There is one pn^ram I would like to mention, 
which is a cooperative venture tetween Government, industry, and 
the Academy of Pediatrics, and that is our TIPP program, T-I-P-P. 
It is The Injury Prevention Program. It was started out with seed 
money from the Office of Maternal and Child Health of HHS. 

The program was introduced by vhe Surspeim General, Dr. Koop, 
at our April meeting in Philadelphia. The McNeil Consumer Prod- 
uct Co. is doing a good dral of the funding to make it poe»ible for 
us :x} develop material for this orogram, and the American Acade- 
my of Pediatrics is presenting tttia to all its members to %me m an 
ongoing teaching pn^ram in iryury prevention to parenta And we 
think that this is the beginning of^ a very interesting combined 
project, and it is the first time that we have been able to combine 
all the aspects of Government, nn^dicine, and industry like this. 

Some of the other problems that Mr. Williams and I have been 
kicking around are the misuse of car seats. Car seats for children 
are very useful. They can save a great deal of lives. One of the 
problems we are running into is improper use in cars, not misuse. 

And what we are hoping to be able to develop ultimately are 
some models that we can use to demonstrate safe use of car seats 
for parents. Bringing in a cumbersome car seat into a doctors 
office to demonstrate how to properlv put a child in is very awk- 
ward, but if we had some smaller models available I tliink we could 
make a great deal of progress in this and also show parents how to 
properly put it in their cars. We are looking to a solution for this. 

Senator Kasten. Well, 1 appreciate your testimony, both of your 
testimonies here this morning- We look forward to working with 
you, hopefully for more of the kinds of suc^^asful joint projects that 
you have been able to describe here this morning. Thank you again 
for your testimony. 

Our next panel will be a imnel of the Ck>nsumer Product Safety 
(liemmission. We hav€ with us this morning Nancy Harvey Steorts, 
who is the Chairman of the Consumer Product Safety Commission* 



ERIC 




14 



along with Mr. Terry Scanlon, who is a Commissioner of the Con- 
sumer Product Safety Commission. 

I just was told a moment ago that we are making pn^^ress on 
this legislation. In fact, yesterday the House subcommittee passed 
out the companion bill. So it looks as if we might even be having a 
race to see whether we are going to pass the bill in the liouse 
U?fore we pass the bill in the Senate. I am very pleased to learn 
that Chairman Waxman has cleared this bill now through his sub- 
committee in the House of Repre^ntatives. 

Nancy, thank you for joining us. 

STATEMENTS OF HON. NANCY HARVEY STEORTS, CHAIRMAN. 
CONSI MER PRODUCT SAFETY tXiMMlSSlON; AND TERRENCE M. 
SCANLON, ITOMMISSIONER 

Ms. Stkorts. Thank you and good morningt Mr- Chairman. My 
colleagues C>>mmi&sioner Statler and Commissioner Armstrong un- 
fortunately are not able to be here this morning. They are out of 
town. They did want me to express that to you. 

It is music to our ears that this has already passed in the House 
subcommitte;; and we are delighted. 

I would iike to present firsts Mr. Chairman, the testimony of the 
Commission as a whole, and then ! have a very short personal 
statement that I would like to present. 

It is indeed a pleasure for the Consumer Product Safety Commis- 
sion to ap^ar before you today to discuw S. 2650, the Toy Safety 
Act of 19H4, and to review with you the I^islative twist that the 
bill is designed to remedy. Quite simply, children do not todav have 
the same protection under the law against products intended for 
them and found to be hazardous as adults have against most other 
unsafe products. 

Ironically, toys and children's products w^re accorded a special 
stiitus by b^ing regulated first as a risk covered in the Federal Haz- 
ardous Substances Act before this agency was created. But they 
now are subject to a more cumbersome, impractical recall process 
because they are covered by an €ict which does not have a compre- 
hensive recall provision. Today, because of this second class status 
for toys and children's products it is easier for CPSC to recall prod- 
ucts intended for adults and which present substantial risk of 
injury than it is to recall hazardcHis products that are unregulated. 

Mr. Chairman, the bills which you and Congressman Waxman 
announced on May 9 and the Senate version which you have before 
you today would rectify that imbalance of protection for children. 

Under current terms of the Federal Hazardous Substances Act, 
the only provision for recall of a toy or children's product is after 
the product becomes a banned hazardous sutetance. Generally, this 
rcHjuires the agency to publish a rule tonning or regulating the 
product, unless the Commission takes the unusual step of first de- 
claring that product an imminent hazard, at which time the recall 
remedy is then available. The rulemaking process often requires 2 
or .'J years. 

The most expeditious proct^ available now for recalling an 
unsafe toy or children's product that is not covered by an existirg 
PHSA regulation or is not an imminent hazard is by transferring 



19 



15 



relation of the rbk of injury under section 3(Kd) of the Consumer 
Product Safety Act, This regulatory transfer from FHSA to CPSA 
is after notice and public comment and a finding that it is in the 
public interest to do so. 

However, this process usually requires at least 6 months to com- 
plete, after which a recall procet^ding under section 15 of the CPSA 
can be started. In the meantime, a toy or children's product consid- 
ered to be hazardous indeed could remain in the marketplace. Yet 
the recall of most products intended for use by adults does not re- 
quire this very lengthy transfer procedure. 

Fortunately, Mr. Chairman, our n^otiations with some indus- 
tries have met with r^ cooperation and quick response when evi- 
dence of substantial risk of injury from their products is at hand. 
Some, however, have been more difficult to persuade. Some have 
used our pro<^ural process to delay as long as pmsible the recall 
of a hazandous product. 

A few examples of readls under various circumstances are as fol- 
lows, and Tm going to summarize these. One, stuffed toys with 
strings. In Octcfcer and November of 1979, the staff received re- 
ports of two strangulation deaths associated with th^ products. 
The firm was contacted and a corrective action plan was negotiated 
during December 1979 and January 1980. 

However, the recall effectiveness, especially among consumers, 
was very low. So in April-May 1980 additional corrective action 
was requested. The company refused. In June 1980 the staff recom- 
mended a section 30(d) proposal, which was published on November 
17, 1980. 

In order to conform the 30(d) rule to the statute as amended m 
August 1981 and in order to include additional products with the 
same risks of iiyury, the 30(d) rule was reproposed December 4, 
1981, and a final 30(d) rule was published March 17, 1982. 

On April 29, 1982, the staff forwarded a briefing package to the 
Commission with a complaint recommendation. The Cv mmimion 
on June 16, 1982, authorized the issuance of a complaint. At that 
point the company agreed to the corrective action recommendation 
and the Commission approved their response on June 24, 1982. 

Squeeze toys are another area. In 1981 and 1982, our staff 
learned of two suffocation deaths involving squ^ze toys that had 
handles with bulbous ends. The importer of those toys involved 
agreed to recall them. We collected and examined 130 squ3eze toys 
from several manufacturers, among which 21 were identified as 
being sutetantially hazardous. Most of the firms are currently con- 
ducting voluntary recalls in cooperation with the Commission. 

But again, two firms refused to recaH their products. Again, a 
prop<^ed 30(d) rule was publish^ in January of 1983 and a final 
rule was published on January 5, 1984. Shortly before the rule 
became final, both firms agreed to undertake corrective action. 

Mesh^ided cribs and playpens: After learning of the deaths of 1 1 
young children in ma?h-sided cribs and playpens when the sides 
had been left down, CPSC issued a complaint in the fall of 1983 
against all manufacturers of these items, seeking extensive public 
notice and a recall under section 15 of the CPSA. And again, we 
had to go through the same rigorous process. 



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20 



16 



Enclosures were another area. Crib hardware was another area, 
and indoor gym houses were another area. And I would like to in- 
clude the specincs of those cases in the record. 

The Toy Safety Act of 1984, if passed, would expedite the correc- 
tive action of all such cases, except those where the industry in- 
volved responds readily and quickly. The bill would allow CPSC' to 
use the same procedures to recall a hazardous toy that it now uses 
to recall other hazardous consumer products. 

The procedure for recalling most consumer products, as you 
know, is relatively a simple one. Under authority of section 15 of 
the CPSA, the Commission may, after a public hearing, require the 
recall of consumer products that either: One, fail to comply with a 
consumer product safety rule and so create a substantial risk of 
injury to the public; or two, contain a defect which creates a sub- 
stantial risk of injury to the public. 

The section 15 recall authority has been one of our most effective 
tools in providing protection from substantial risks of iiyury in the 
marketplace. Rq^iation and standards, both voluntary and Com- 
mission-mandated, are effective for subsef^uent production. But a 
recall or corrective action program is :>ften the only effective way 
to reach those defective products already in circulation or in the 
possession of consumers. 

In reviewing some of the l^islative background which left toys 
and children's products outside of the normal realm of the CPSA, it 
seems that this was indeed an unintended oversight brought on by 
an earlier effort to give special protection for toys. The effect has 
been truly a cumbersome system which can take months and in 
many cases years to recall a hazardous product destined for use by 
children. 

Mr Chairman, no consumer is more vulnerable to the hazards of 
product defects than little children. The Consumer Pnxluct Safety 
Commission has long realised this vulnerability and has had a 
very deep interest in the special field of toy safety. 

We have also worked very cooperatively with the toy manufac- 
turers over the last 3 years since I have been Chairman in a very 
effective holiday toy safety program that has really done a great 
deal to educate consumers about the imfwrtance of buying the 
right toy for the right child. Age labeling on toys is a very impor- 
tant way that manufacturers can make toys safer for children. 

A number of manufacturers and importers are already providing 
appropriate age labeling for their toys, particularly thwe intended 
for children G years old and under. The Commission hopes that toy 
manufacturers and importers will join us in providing this impor- 
Unit information to prevent unnecessary accidents. 

Kc*gardless of such worthy prc^ams, however, problems do some- 
times aris<» in children's products. When we at CjPSC' learn of acci- 
d€*nts from these products, it is our job to investigate and when 
necessary to act. A major difficulty we have faced in such situa- 
tions involving toys and children's products has been this very com- 
plex» cumbersome process of effecting a recall or a corrective action 
program. Delays in such matters hardly seem justified. 

It is a source of great satisfaction to the Consumer Product 
Safety C^bmmission that the issue of toy safety is one that enjoys 
broad public support. This l^islation should go far in enhancing 



21 



17 



one of the effective CPSC tools used in our toy safety responsibil- 
ities, and it should permit us now to utilize more effectively our 
legal resources currently employed in these 30(D) proceedinifs. 

We at the Commission support the legislation proposed by you, 
Senator Kasten, and by CongreMman Waxman. And I would like to 
just briefly now add a few personal «>mments. 

I believe that this bill shows a sensitivity to the needs of tl»e 
American consumer. This bill will hopefully correct a legislative 
quirk that for 10 years has hampered the ability of the Consumer 
Product Safety Commission to work expeditiously to protect the 
children of America. 

I think also it is important to point out that there is indeed a 
difference in the way that we can respond to children's products 
versus our response to other products, and I would like to give you 
two examples, and I would like to go back to the squeeze toys. 

Although most manufacturers were cooperative with the squeeze 
toy scenario, two firms were not. This meant that it took from 1981 
to li»84 for the American marketplace to be free of a substantial 
product hazard. In contrast, manufacturers are also far more will- 
ing to take prompt conwtive action for an adult product because 
they know that the Commiffiion does not need to go through these 
protracted 'MD) proceedings, but instead can rapidly issue an ad- 
ministiative complaint to compel a recall or other appropriate cor- 
rective action. 

A case in point is the Commission's recent voluntary recall on an 
electric space heater. This heater had been involved in six fires, in- 
cluding one in which an 18 month old baby perished. The Con- 
sumer Product Safety Commission contacted the manufacturer of 
this product in February of 1984 and the re<»ll was announced in 
April of 1984—2 months, versus the 3 years it took on squeeze toys. 

While we are talking about the safety of children's products, I 
would like once again to emphasize my belief that much more 
needs to be done in the area of age labeling. Age labeling is a key 
way that industry can help make toys safer for the individual 
child. I would like to see on every toy, particularly on those intend- 
ed for children 6 years of age and under, appropriate age reconi- 
mendations and an explanation of the safety reason behind the 
recommendation— in other words, better information for the 
consumer. 

I am confident that the combination of better age labeling tor 
toys and the ability now to recall hazardous children's products 
quickly will go far in reducing the tragic toll of toy-related injuries. 
Although toys are indeed safer on the whole now, there were still 
\'Z:i,iHH' injurit»8 in 1982. and this figure is simply too high. 

Mr. C:hairman, I am pleased to hear that Virginia Knauer is sup- 
porting this legislation and that the Reagan administration is 
behind this important effort And I would like to thank you perM>n- 
ally and on behalf of the Commission for your leadership in bring 
ing to fruition the Toy Safety Act of 1984. 

|The statement follows;] 



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22 



18 



Statfmknt 4»F Hon Nanjtt Harvry Stborts, Chairman. U S Consumeu Phodixt 

Savtty C>)Mmi^<)W 

Mr Chairman, it is indeed a ple^re for the CkMiaumrr Prwduct Safety Commin- 
8ion to apiK-ar beforr you today to discuss S 'X!iO. the Toy Safety Act of 1»H4. and to 
review with you the legwlative twist that the bill i» desiRned to remedy 

Wuite simply, children do not today have the same protection, under the law 
against product* intended for them and found to be hazardous, m adulta have 
HKuinHt most other unsafe producta. Ironically, toys and children's products were ac- 
corded a special status bybeing regulated first as a risk covered in the Federal Haz- 
ardous Substances Act (FHSAl before this agency was created. But. tJhey now are 
subject to a more cumbersome, imprwrtkal recall ptxicew because they are covered 
by an Act which does not have a comprehensive recall provision. Today, because of 
this second^laas statijs for toys and children's products, it is easier for CPSC to 
recall products intended foi adults and which present substantial risks of injury, 
than It IS to recall hazardous tovs tJhat are unreRulated 

Mr I'hairman. the bills which you and Congressman Waxman announced May ». 
and the Senate version which you have before you today, would rectify that imbal- 
ana* of protection. j >t 

r }'^*'n''"/'^r' ^•■"l.of the Federal Hazardous Substances Act, the only provision 
for recall of a toy or children s product w after the product becomes a "banned haz- 
ardous substance (.enerally. this requires the agency to publish a rule banning or 
retrulatinB the product unless the Commission takes the unusual rtep of first declar- 
' u '''£P''««'V''* an imminent hazard, at which time the recall remedy is then avail- 
able The rulemaking process often requires two or three years. The most expedi- 
tious procttis available now for recalling an unsafe toy or children's pitiduct that is 
not covered by an existiM FHSA regulation, or is not an imminent hazard, is by 
iransferring /^»«t'on?f the risk of iiyury under section 30(d) of the Consumer 
I rcHluct S|.fety Act (CPSA). This regulatory transfer from FHSA to CPSA is after 
mrtice and public comment and a finding that it is in the public interest to do so 
However, this process usually requires at least six montl^ to complete, after which 
a recall proceeding under section If, of the CPSA can be started. In the nieantime. a 
toy or children s product considered to be hazardous could remain in the market- 
place Yet the recall of most products intended for use by adula. does not require 
this lengthy transfer procedure. 

Fortunately. Mr Chairman, our negotiations with M>me industries have met with 
cooperation and quick rraponae wl^ evidence of substantial risks of injury from 
their pn»duct*i is at hand Some have been more dilficuU to persuade Some have 
used our procedural prac°«s to delay m long as pcosible the recall of a hazaidous 
product . 

A few examples of recalls under various circumstances are as follows- 
<li Stt4fjifl toys with Htrtng&.-\n Oct<Aer and November 1979, the staff received 
reportj* fjf two stranguk tion deaths araociated with the products. The firm was con- 
t«ct«^ and a corrective action plan ww negotiated during December 1979 and Janu- 
ary 19W» H-wever. the recall effectiveness, especially among consumers, was very 
low. turn April May 19H0. additional corrective action was requested The company 
n fum>d In June 19H0 the staff recommended a section :iO(d» proposal, which was 
published November 1<. 198« In orJer to conform the mA) rule toOie statute, as 
amendwl in August 19K1, and in order to include additional products with the same 
n.sKs of injury, the .-{(VdJ rule was repropofwd December 4, 19K1. and a final MXA) 
rule was puWished March 17. 1982. On April 29, 1982. the staff forwarded a briefing 
package to th<- ( ommissiim with a ccmiplaint recommendation The Commission, on 
June 11IH2. authorized the issuance of a complaint At that point the company 
agreed to the corrective action recommendation and the Commission approved their 
response June X'JHt. 

m S^fueeze toys. -In mi and I9«2. our staff learned of two suffocation deaths in- 
volving squeeze toys that had handles with bulbous ends. The importer of the toys 
in%olv<-d agreed to recall them We collected and examined 130 squeeze toys from 
several manufacturers, among which 21 were identified as In-ma substantially haz- 
ardous^ Mtwt of the firms ore currently conducting voluntary recalls in cooperadoo 
with th*' ( <>mmission. but two firms refused U* recall their prtxlucts A proiKMed 
.1 published January 3. 19H,'{. and a final rule was published January 5. 
1.»X4 Shortly before th*- rule became final, both firms agreed to undertake correc- 
tive m-tioii 

<:<f \fesh skM IT, hs and ptayi>ens After learning! of the deaths of 11 young chil- 
dn r in niesh sided cribs and playpens when the sides had been left down CI'SC 
issued u tomplainl in the fall of against all manufacturers of these items seek- 



2:i 



19 

ing extensivf pHiblic notici* and a recall under iteetHm 15 of the <'I*SA Seven of the 
deaths occurred between and I9HIf ThtB matter ts currently in litigation, with 
the nrnnufacturers conte«liiig the staffs position that it was in the public interest to 
recall and provide extensive public notice of the hazard involved. Trial is set for 
August 1984 The \¥}id\ rule was proposed in this case March A, 19H,H, and issued in 
final form July 27, 1983 

(41 £rze/aM«/¥!S.— Between I9H0 and 198*A the staff received three reports of deaths 
and one report of brain damage caused by neck entrafmient in (Miclosures— expanda- 
We cvlindrkal wooden enclosures intended to ccmflne children. On June If*, l^i, 
the (xmunission published a proposed rule under sectkm ^d). A final {¥kd) rule was 
publmhed March 5, I^. The staff has indicted that it may be necessary to seek 
compulsory corrective actmi umfer section 15 nf the CPSA. 

ify) Crib headboards.— Two models at cribs manufactured by one firm were in- 
volved in seven deaths. The firm i^p^eed to recall the cribs and an extensive notifica- 
iwn effort was conducted between 1978-8D. After learning <^ two deaths during 
lKi3. the firm agreed to another effort to notify the (mblic about the hazard and the 
recall. If it had been neoeaitfiry to go through the ^d^ procedures, the time to initi- 
ate both corrective actions by the firm and to notify the public would have been 
increased substantially. 

(6) Imioor gym houses. — This c^ is similar to the crib headboard c$me in that the 
firm agreed to a second recall and notifkation effort. Two deattm led to the initial 
recall m 1980. The Mcond effort w»b the re«tult of a third death in I^. These cor^ 
rective actions ami puMk; m^ificaticm efforts would have been substantially delayed 
if it had been necessary to follow the 30(d) procedures. In <^her words, if the indus- 
try had not been cooperative, <Mir hands would have been tied fiMr several months. 

The Toy Safety Act of 1984, if passed, wwld expedite the corrective action on all 
such cases, except those where the iodttstry involve re^ioiKte readily and quickly. 
The bill would allow CPSC to use the same procedures to recall a hazardous toy 
that now can be used to recall other hazardous ootiwmer products. 

The proc^ure for recalling most consumer products^ as 3fou know, is relatively 
simple. Under authority or section 15 of CPSA, the Commission may, after a public 
hearing, require the recall of consumer products that either (ll fail to comply with a 
consumer product safety rule, and bo create a mibstantial risk of ir\jury to the 
public, or ih contain a defect which creates a substantial risk of injury to the public. 
The section 15 recall authority has been one of our most effective tools in providing 
protection from substantial risks of iiyury in the marketplace. Regulations and 
standards, bc^h voluntary and Commtaeoon mandated, are effective for subsequent 
production. But a recall or corrective action program is <rflen the only effective way 
to reach those defective products already in circulation or in the possession of con- 
Burners. 

fn reviewing some of the legislative background which left toys and children's 
products outaide of the normal rmlm of the CPSA, it seems that this was on unin- 
tended overHight brotight on by an earlier effort to give mfcial protection for toys 
The effect has been a cumbersome system which can take months— am^, in some 
cases* years -to recall a hazardoi» product destined for use by children 

Mr (Airman, no consumer is more v«ilnerable to the hazards of product defects 
than children The Consumer Product Safety Commission h^ long recognized thin 
vulnerability and has had a deep interest in the special fteld of toy safety For ex- 
ample, during the last three years, this agency has had a Hdsday Toy Safety pro^ 
Kram before rhristmas to promote safe buying practices and to caution adulli? about 
potential hazards in the cniMren s market. TTiis program has been held in coopera- 
tion with the Toy Manufacturers of America and has been very succef»ful in reach- 
ing the buying public at a time when many tc^ are selected for children 

Age labeling on toys is a very important way that manufacturers can make toys 
Mifcr for childnm A number of manufacturers and im purlers an- aln*ady providing 
appropriate age labeling for their toys, particularly those intended (or children nix 
yearn old and under The (*>om mission hopes that toy manufacturers and importers 
will jom ill providing this important information to prevent unnecessary accidentia. 

Ri^i^ardless of such worthy programs, however » problems do mmietimes arise m 
children's products When we at CPSt! learn of accidents from i^wee products, it is 
tw job to investigate an when necei^ary, to act A m^r dtfTtculty we have facrd 
m sr>me situations involving toys and chiblren s products has been the complex and 
<'umh<»rmome process for effecting recalls or corrective action, 

j[)elavM in such matters hardly seem justified* especially when con>iidering the 
type of cxinfiumers who are at risk. It is a mnjrce of great satisfaction to thiis Com 
mission that the issue of toy safety is one which ^nk>ys broad |Kiblic support Thi^ 
teg)»(ati<in nhoutd go far in enhancing one of the efliNrtive (?PS(* tools umni in «>ur 



24 




20 



toy mMy reH^mmbiUU^ and should permit ub to utilize mon> effectively our legal 
resourcet* current Iv emptuyed in thetse "MHd) proceedings. 

We Kupport the l^gislatton prc^iosed by vou and Congresmnan Waxman. 

Thank you. Mr. Chairman, and we will be pleased to respond to any que^tionf 

Senator Kasten. May I say, we thank you. And I think your ex- 
ample that it is tougher to get a squeeze toy off the market than it 
is to get a space heater ofT the market is particularly telling and 
particularly meaningful. I also think, though, that we are seeing 
an unusual degree of cooperation coming now from the toy manu- 
facturers group overall, and Tm told that the testimony from 
Mattel is really the rule, not the exception to the rule. And more 
and more we are ^^eing that kind of cooperation. 

I know that for your Christmas efforts on Christmas toys you 
had a lot of cooperation from the toy manufacturers' groups and 
other groups, and I think that for that kind of cooperative attitude 
you and your fellow Commissioners should be commended. 

Commissioner Scanlon, is there anjrthing that you would like to 
add to Chairman Steorts' statement? 

Mr, ScAMLON. Senator, I have a very brief statement. 1 can 
submit it for the rea>rd if you would like or 1 could read it. 

Senator Kasten, Why do you not summarize your statement. 

Mr. Sc^ANLON. OK. First of all, I support the Toy Safety Act of 
1084 and I want to commend you. Senator, for your efforts in intro- 
ducing this legislation. I believe it is l<^cal that regulatory proce- 
dures governing safety for articles intended for children should be 
no mure encumbered than those intended for products aimed at the 
general population. 

I think your bill ends this discTimtnation against regulation of 
children's products by eliminating the burdensome task of transfer- 
ring risks in children's products when action is appropriate. I 
would like to offer two specific comments, if I may. 

I was pleased yesterday that a House Energy and Commerce Sub- 
committee added the defect langiiage. I think that is important as 
a regulator. I believe that this will provide us with clear legislative 
guidance when regulating not only toys but other areas that come 
under our aegis. 

Second. I think that the added authority for the FHSA provided 
by the Toy Safety Act could be a doublenedged sword, and let me 
explain that. When used appropriately, recall authority is a power 
ful and effc-ctive tool. On the other hand, I am concerned that by 
e^ising the road to litigation we may find ourselves abandoning 
rulemaking proct»dures that have so successfully governed the de- 
velopment of safety standards for children's products for the past 
decade. 

('ongressional overeight exercised over rulemaking has made 
rulemaking a less attractive prospect. When combinea with easier 
access to litigation as an alternative way to reach the same results, 
4*gencies are likely to follow the course of least resistance— adjudi- 
cation. That in large part bypasses consumer injput, cost-benefit 
analysis, and other procedural requirements placed by (ingress on 
the rulemaking process. 

And the Committee on Governmental Processes of the Adminis- 
trative Conference on which I have served for the last year as the 
CPSC representative, in its proposal to the conference on proce- 



21 



duns for product recatis recently recammended stronger recall au- 
thority for Government agencies. 

The committee points out* however, in these recommendations 
that: **The forgoing recommendations are not intended to encour- 
age agencies to use recalls as a sutetitute for rulemaking, but 
merely to streamline the process of detaining recalls where appn> 
priate/' 

So the opportunity for abuse does not detract from the usefulness 
of S. 2650, but it dora suggest that some guidance for the role of 
adjudication in the regulatory pn cess may he appropnate. 

What I would like to do is submit my complete statement for the 
record and also. Senator, if I may include the Committee on Gov- 
ernment Processes proposed recommendations that I just refer- 
enced. 

Senator Kasten. Both will be included in the record. 
(The statement and material referred to follow:] 

Statement or Terrencc M, Scanu>n, Commissioner, VjS. Consumer Product 

Safety Commission 

I support the Tov Safety Act 1^ (S. ^50^ and welcome the uniformity that 
the bill will provide in regi'Hting children's articles umier the Federal Haacardous 
Sub^nces Act (FHSA^ and other products regulated under the Consumer Product 
Safety Act (CFSAk f crnnmend Senator Kemtjm for his efforts in introducing this leR^ 
islation in the United States Senate. It m logical that regulatory procedures govern- 
ing safety for articles tnt^ded for children should be no more encumbmd than 
those intended for products aimed at the general pcKMilatim. The Toy Safety Act 
will end any discrimination against regulation erf children's products by eliminating 
the burdensome t^ of tranmrring iwts in diildren's products when aijUudicatlve 
action is appropriate. I would like to offer a few comments* 

First, the rmrnimendation to inclwie in the iNil lai^cuage specifyii]^ that the a^fti^ 
dicative authority ib triggered by aprcduct ddfiect m appropriate. The langiutfe is 
consistent with Section 15 of the CfSA^ an which this antendment to the FHSA 
relies. Even mmr importantly, specifying defects that create a substantial risk of 
injury provides decidedly clearer legwlative guidance to regulatory action. Many 
ii/mm, mich m baseball bola and bicyctea, can prearat a rkk ^ injury in m>rmal use 
that should not fall under regulatory mrtion. 

Secondly, the stddtd authcaity t<» the FHSA imivided by the Toy Sad^y Act may 
be a double-edged sword. When used apprwriately. the a4}udicatiw recall authority 
is a powerful and effective tool. On the mier hand, { am concerned that by easing 
the road to litigation, we may And ourselves into abandoning rulemaking proce- 
dures that have so succeasfulfy governed the development of safety standards for 
children's products for the first decade of th» Commiasion. Congressionai oversight 
exercised over rulemaking has made rulemaking a less attractive prospect When 
combined with easier access to litigatiofi as an alternative way to reach the same 
results, agencies are likely to follow the course of leafi^ resistance — adjudication — 
that in large part bypasses consumer input, cost-benefit analysis, and oiher proce- 
dural requirements placed by Congress on rutemaking |Ht>cess. The Committee 
on (kivemmental Processea of the Adminsitrative Conference of the United States, 
in it^ propoBai to the Conference on proeodures for product recalb, recently reomi 
mended stronger recall authority for govemn^ent ligeiKka. The Committee points 
out. however, in those recommei^tions that "the ^r^oii^ recummendatkms are 
not Hitencfed to encourage agencies to use recalls as a suratitute for rulemakii^, but 
merely to streamline tl^ pmccas of obtaining recalls where a^>ro{niate/' TliN? op- 
portunity for abufie <jk)es not detract from the iwefulneas of S. 2fi50, hut it does sug- 
gest that some guidance for the role of adjudication in the r^titatcn^ process may 
be appropriate. 

Finally, I must mentim age labeling, which is noi related to the bill at issue but 
was raised last week at the hearing on H.R. 5630 before Congressman Waxman. 
Like anv responsible parent, I support effective and if^ructive labeling on items 
intended for children. And like any good safety regulator, I am amticms to eliminate 
an unreenonabte risk of itvury when it arises. But age labeling regulatiim may be a 
repair in search of a hamrd, While Commtmon res^rrh that will th<mughly ana- 



O 7-679 O - 04 - 4 



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22 



lyw the problem is scheduled for fiscal year 1^5, preUroinary evKknce recently 
preaented to the CommisBkm dc 4 not sagged an^ glarii^ problems. Age labriing is 
a concern that has been diligently midressed by industry for many yesum, I am cer- 
tain that the Commisaion's ^untary coc^peiative eflbrtB with tiw toy indu^ry will 
result in improvementa no the age kribeling that already e&ista 



CuMMirrsE ON Governmental Procssbeb PftcmisED Rscdmmkndation Twenty- 
KtGHTH Plenaev Sbwon— Pbockdurks rm PtoDucT Rbcaixs 

Each year manufacturers recall milli«» of consun^r products — ranging from toys 
and hot^hold liances to dni^ and autos--un<fer an array <d fiKtoml nealth and 
safety statutes. Moi^ recalls are uncfertaken ^iintarily, ettl»«r on the roanufoctur- 
er's own initiative or at the uiginff of a federal agetKy with recall authority. The 
recall reroediyt while a valuaUe enraromnent tool, m also om that is difficult to im^- 
plement. A recall must be undertaken promptly if it is to serve its fmrpose of pre- 
venting injury. Further, to be effective, it must be implemented in a way that en- 
courages public responaivBsieBs. 

For Durposes of this recomm^idation^ the term "recall" encmipMBra a variety of 
post-sale remedial Mlkms by manufacturers and sellers of produda, including: (1) 
notifying consumers of imiUra^ or potential prtdilrais with modiKte; (21 offiartng to 
repair products; and CS) offering to refund the oosi er to reftee products. The m> 
ommendation is b^ed, in part, m a study oi the recall tmwrams <d three federal 
agencies that account for the great m^yority ot recalls— the National Highway Traf- 
fic Safety Administratkm (NHTSA), the Food and Drug Administtation (FDA) and 
the Coraumer Product Safety OommKsicni (CPSC).^ Badb of the three ^encies stud- 
ied has the authority to order at teaet me of the port-sale remedial actions cMited 
above. E^h is activdy involved in recalls ^ omauroer products that pose health or 
safety risks to the gmeral pttbUc, ti»taiMs where the need for effective use of the 
recall remedy is the greatest and its iropksnratatim is the mort diffkult However, 
these recall progran» differ with reiqpect to standards for odering recalls, the scope 
of the remedy, and adminktrative procedures. Some €d the differences s;e statutori- 
ly based; others grow out id varied methocb of im|rf^wnting the programs. 

Although all three ac^enc^ make extent ve use d[ recalls to implement their rtat- 
utes, recalls have certain inherent limitatiro^ ^ enf<men«ent tools. CoiwuroerB can, 
and sometimes do, render them indfective 1^ failii^ to re^irad. Farther, recalls 
generally work well only if th^ are tutdertak^ prmptly and afW a minimum of 
agency prodding. Recateitrai^ Unm can often thwart the effectivmaos isf the 
remedy merely by invokii^ avaihdUe adminiatfi^ive imcedurea Ttere are a 
number (rf reasons for firms to be recalcitrant wfam fac&d with a possible recall. 
Comoanies may not ei^oy much |m>Cect«m i^psin^ {Roduct liainlity cuudm by recall- 
ing defective products — mcfeed^ recalte can stimulate additi«mal law suits. Recalls 
d^en bring aoverse nuUkity, ami Uiey can be vny ezpnEsive, requirinf refunds or 
replacements ot proaucts that have already beem produced and marketed. 

Beeatffie recalls oflen work better than other remedies, however, tfwy are a mu>r 
enforcement tool of the three a|^mc^ studtod. Tbare are a number of re^sms for 
their popularity. From the aipencies' i^andpmnt: 

Recalls do promote safety. Alt}K>ugh re^iocM rat^ are lower than agencies would 
like, consumers in significant numbers do return or dkcard recalled products or use 
them more safely. 

Recalls establish i^rececfents for what constitutes an unaooei^ably hazardous prod- 
uct. 

Recells cerate more quickly and efikrienUy than most stondard setting, hi recall 
cases, govenuwnt and mdue^ <rflen share a sense urg^icy that a hazardous 
product idiould be removed from the marketplaoe. Thai ham led aaendes to adof^ 
informal, flexible settlement procedures which have made it easier Tor companies to 
agree to umtertake recalb. 

Industries also may pr^er recalki to standard m an enforcement tool becai»e re^ 
calls genemlly affect only iiw makers of umnfe imiduciB rather than all imxli^ 
manufacturers. Recalls, unlike many standank, do o^ impose acrQsss-t):»4Mmrd cer* 
tiftcalion requirements and nu^ im|mBe fewer reoordkeepuig requimnenta. 

Agencies mu^ reconcile several mtereite in impten^ting thrJr reoUl pttigrams. 
They must be 8en«tive to the potential for oot^nmierB to d'^reord recalls if the 
remedy is overtHied. They mi^ stress voluntary agreements to achieve prompt— and 
therefore efTectiye^recalls, yet be willing to their enforc^nent powers ti volun* 



» Othrr iw»Qrt«» ihM ef^p«e in peoA^ta recalls tadade EPA, PAA, HUD aad l^DA 



23 

tfkrjr efforts stall. They must be flexible in ne^^f^ttng the tenm of recalls to encour- 
8^? VYrfuntansm, jret as^re that the notice and remedy are adequate to inform and 
protect product owners. 

In general^ agmcies should work tc^geti^r to develop a more uniform approach to 
recam De^te the diffefences in the agencies' progran^ they share common chat^ 
acteristicB and goals* and they mui^ all deal with the general public. Agencies could 
benefit from sharing with eadi other what thev have learned about re^dls» ami the 
pid>iic ccmtd benefit from more omwtency in the recall progranm. 

Agencies riKmkl also cfmOer puUidy cbw^fyii^ their recalb according to risk to 
help the public aaaess the hazanb of recalled products. White this ai^noach may 
present some prdbimm in negotiating recalls, it reoqgniaBs the important rolh that 
the oonmmer plays as a partner with govemimnt and bimnm in the recall process 
and the need to provide tnal partner with actequate inftNinatkm. 

Moreover, adoitlcmal enforcement tools are warranted for some agencies^ As a 
practical matter, agencks canwt bring many enforcement actiow, but the availabil- 
ity of these additional powers, atul tteir occasional use wlmi necessarv, can s»sist 
agencks in negotiating voluntary recalls and in carrying out the overall aims of the 
recall programs. Even a relattvriy mtmSl numbm* of enforoeromt actions ultimately 
serves the tmiader aim of eimiuraging voluntary ocmiidiance by others, and should 
therefcnv be streamlimd where poa^Ue. 

Thcee laooeduralrefiwmaaro rec o mm e n ded^ 
recall programa Firit, such agencies should cmt^fer seekii^ broeifer statutcn^ au- 
thority to require manufa^ums to repmt safety d^Bcta. A provision mmilar to Sec- 
tion 15<b) of the Cons^mier Product Safety Act, which re^uunes reportii^ of defects 
that "could create" a potential hazard, would give i^pencies earlier warning of de- 
fects and reduce their infonnatkm gathering bunfen, without changing the i^tamlani 
for recalls. 

Hie second recommenced change would give agencies additional authority in 
cases involving serious or imminent safety inxMems. In genmd, if a case must be 
taken through bc^ administrative ami ^udu^ial proceedii^ the proceas may be so 
lengthy tl^t the recall could be inmactr^ since most of the iiuuries will ti^ve oc- 
curred and the response rate will be low. Therefore, agencies should be given au- 
thority in especially hazardous caam^ to bypass the adminktrative hearing and to 
seek cour^ordered recalls. 

The third general reform 'm based on the premise that the availability of a variety 
of cmfottement Uxh^ such as court-onfervd seizures and civil penaltks, helps to 
induce voluntarv cooperatioii with an agency's recall i^jgram. Semure is not always 
an Elective tool, however, untess tte agenof is able to obtain products administni- 
tively at the point of distribution |Mrior to nUx^ a seizure actKm. CPSC and FDA, 
which have authority to seek court-<ntfered seizures, slnmki coo^ler the (tesirabilitv 
of detention authcmty where it would aid their uae d[ thte eafc»cement tool. FDA 
should also seek civil penalty authcHty for stotutc»ry vtolati<m where it now only 
may seek criminal penalties. 

Psrt of the recommen<btion is aikiressed specifi^ly to the CPSC. The CPSC en 
forces four signiHcant safety statutes: the Consumer Product Safety Act (CPSA), the 
Federal Hazardow Substances Act (FHSA), the Flamm^e Fabrics Act (FFA), and 
the Poison Preventi<m Fsckaging Act <PPPA). Both the CFSA and tl^ FHSA give 
the agency the authoritv to ore^recalls, ami thk has beccmie a favored enforcraM>nt 
tool of the agency. Unoer these two Acts, if a voluntary recall m not achieved, the 
agency must conduct a formal admini^rative hewing prior to ordering a recall. 
Under the CPSA, the o^p^ncy may go directly to court to seek a recall if the product 
Involved is "imminently hazardous." Under the FHSA, the agetKry may proceed ad- 
ministratively i^pinst immin^tly hazardous products. Nether Act ccmtains a judi- 
cial review prov^ion, with the remilt that ^'nm-^atutory" review o' agrocy recall 
orders occurs in the United States Du^rict Courts. The aliset^ of a ju^Bcial review 
provision for recall ^rvfers under the CPSA and FHSA ^lould be cwrected. Congress 
sfumid provK^ for judicial review in the United States Cmirts of Appeate uncfer the 
"substantial evidence" test ^ Thm would eliminate the exkting, lengthy, two-tiered 
judicial review ptticedure. Tht FFA and PPPA omit reoUl provision entirely, caus- 
ing uncertainty as to the Commtssimi's alHlity to use recalb again^ unsafe raoducts 
governed by either of these Acts. It would fwtww^ r«<»ll uniformity ana reduce 
delay if the CommiHsion could address t!^ risks posed by all products under it^ ju* 
risdiction under the procedures of Section 15 of the (TSA. 



• Set* ACVS RerommMKlatKm 75 'S, Th* CtuMC** of Forum for Judicial Brvk^ of Adminislra 
Uve Actkm. I CVH 



28 



24 



HBCXIMMENDATXUNS 



Cotfrdinatwn of rrcail aciu tdes 

L Intera^my recall liatson gnmp.—A grxmp consisting of reprewentatives from all 
aKWcies with r^catl programs should be established to inform each other about 
their prc^ama and to share research in areas of common interest, such as how to 
improve consumer response rates and how to ase new technoloi^ to improve rtn^all 
notification. 

2. Recall nolMT*.— Recall notices should clearly describe the nature of the defect 
and the nature and extent of the risk of harm that prompts tl;e recall. Individual 
agencies should consic^r wlwther their mission would be advanced by classifying re- 
calls ^mrdtng to risk. Tlw inter^^cy liaison group owild explore the possibility of 
coordinating the claae^ication systems so that the agencies use similar terminol<^ 
to designate levels of risk. 

3. Imprm^ handling tff consumer inquirrs and complaints. — Consumers do not 
always know which ageiMry takes complaints or has information about recalls. Agen- 
cies with recall programs should establMi a central interagency switchboatxi to take 
all calls and refer them to the appropriate ^ncy. As an alternative, agency person- 
nel designated to receive inquires or complaints relating to product defects should 
be made aware of the recall programs of other agencies so that inquiries or com- 
plaints will be r efer red to the inroper office. 

4. Fublicuing rmi/ik—EiM:h s^^emry should seek to develop a method of publishing 
periodically an up>to^te list of adiw recalls within the agency's jurisdiction. 

A Procedural improvements 

\, Agencies with recall programs should have statutory authority to require man- 
ufacturers to give the agency information in their pcwession about potential safety- 
related defects in their products, which could create a substantial risk of injury to 
the public. Such authority should be accompanied by appropriate incentives for 
compliance. To the extent that agencies with recall programs lack this authority, 
they should consider asking Congress to grant it. 

t Agencies with reoill programs for defective products should be authort2ied to 
bypass aaministrative hearings and to seek court-ordered recalls in c^es of serious 
safety problems as deTmed by the relevant statute. Agencies that lack such author- 
ity shouM consider asking Congrero to grant it. 

3. Court-ordered seizures, which are enfmcement toote that augment some agency 
recall programs, can be made mwe effective i^ agencm alao have authority to 
detain products prior to seizure. Agencies authorized to seel^ seizures should co»isid- 
er seeking statutory authority to detain products administratively. 

4. C4>ngress should streamline tlw Consumer Produrt Safety Commission's recall 
authority by amending the C>onmuuer Product Safety Act (at to give the Commi^ron 
speciHc authority to sec4c recalls of all products within its jurisdiction, including 
ihooe now subject to the Federal Hazarctous Substances Act, the Flammable Fabncs 
Act and the Poison Prevention Packaging Act; and (bl to provide for judicial review 
of agency ordered recalls in the United l^tes Cxmrt of Appeals under the "substan- 
tial evidence * test 

5 The F<x>d and Drug Administration shcHiId be given civil money penalty author- . 
ity as an option wlwre only criminal penalties are now available * 

The forfgoing recommendations are not intended to encourage agencies to use 
retails m a Hubstitute for rulemaking, but merely tc streamline i\w process of <^ 
taining rwalls where appropriate. 

Senator Kasten. Let mc just say, I understand the point that 
you are making about rulemaking versus recall. It is not our inten- 
tion to suMitute recalis for the overall rulemaking process. Frank- 
ly» I think the rulemaking process is essential and is very, very im- 
portant, especially as we nre trying to develop now a more coopera- 
tive atmosphere between the manufacturers and Government 

I think the rulemaking process is critical, and we will be working 
with you and the chairman as we kind of watch how these things 
develop. And it is not our intention in any way to have this as a 



ERIC 




25 



substitute for ruleinaking. It is our intention, in your words^ to 
streamline the recall process where it is in fact appropriate. 

Nancy, do you or other Commi^ioners have an objection to 
adding the word "defective" to the bill in order to make the recall 
procedures for tojns and children's products parallel to those cur- 
rently in the CPSC? 

Ms. Steorts. Mr. Chairman, in my comments before Congress- 
man Waxman I preferred to have a broader perspective. However, 
if it means that we could exp^itiously get this bill moved forward, 
and it does parallel what we alrrady have in the CPSA, I frankly 
at this point would not have any Objection to that. 

Senator Kasten. Good. 

OK, thank you very much. And the committee and I personally 
are pleased. No. 1, that the two of you took the time out of your 
schedules to appear before us today. Also, we very much appreciate 
your help and your support. Frankly, that kind of help and support 
makes it more likely that we will in fact have a bill on the Presi- 
dent's desk. 

Mr. ScANLON. Thank you. 

Ms. S^TEORTS. Thank you very much, Mr. Chairman. 

Senator Kasten. I am told— Nancy, m^^be ymi might want to 
stay there a minute. I am told that you are prec^red and you have 
a Stan* person here that would very briefly go through some of the 
products, or maybe vou would like to do that yourself, the problems 
with one or two of the things that are here before us. 

Ms. Steorts. Tim is the mesh-^ided pla3rpen that I referred to in 
my testimony, Mr. Chairman. The WOTlem with this is that most 
consumers, when they bring a brand new oaby home from the hos- 
pital, assume that that little one cannot wiggle or move armmd at 
that age. The problem is that when parents see a playpen or crib 
like this, they would put the baby into the plavpen in a position 
such as thb, and would not realize that they should always keep 
the sides of the crib or playpen up. 

Unfortunately, the baby <kies move around, and if this crib or 
playpen is left in the down positicm, such this, what happens is 
that the child can move down into the mesh, and suffocation can 
result. We have had several deaths from tliis. There is nothii^ 
sadder than to find a report that a child has died from a situation 
like this. 

Now, the correction fur this enviously is that if a consumer has a 
mesh-sided crib or playpen they should always leave the sides up 
and then the baby in it will not have the pi^blem of rolling inUy 
the mesh. This is a situation where we are asking the manufactur- 
ers to put labels on this product. We hope that this is a program 
that they will work very cooperatively with us on, and that this 
problem will be correcteo. 

But it is again a scenario where many pcHiple do not realize what 
can happen to a brand new baby if the sid^ of the equipment are 
not in the up position. 

Senator Kasten. I am told that there were a number of deaths 
that were caused by a playpen, a mesh playpen similar to this, 
f Touid you deticribe to us how long, if you happen to remember, how 
long it took to get this particular—I am told there were 11 deaths 



30 



26 



from that particular product. Do you happen to remember how 
many months it took in order to get that product off the market? 

Ms. Steorts. We have had 11 deaths from this particular situa- 
tion. And John Preston, why don't you just give an overview of 
where we are in the situation. 

Mr. Preston. At the present time, the Commission's a>mpiiance 
staff is negotiating or going to htigation to get more notice from 
the manufacturers of these products, notice to the consumers. 

Senator Kasten. Why do you not take maybe one more example? 
I do not think we have to go through all of them, and I am worri^l 
that we do nc^ want to run out of time. 

Ms. Steorts. This crib exemphfies what we have seen with the 
crib hardware problem. We have been working with the manufac- 
turers on improvement of crib hardware. 

And John, why don't you speak to exactly what is happening to 
this on the voluntary standard. 

Mr. Preston. I just returned yesterday from Philadelphia, where 
I attended a meeting with industry reprraentatives in a voluntary 
standards forum where we are actually developing standards to im- 
prove the hardware on cribs. One of the suggestions yesterday was 
that the crib mattress support, the frame in which the mattre^ 
rests, should withstand a 3(^pound upward force which it may be 
subjected to when a consumer is making up the bed in a crib, and 
it should withstand disconnection from the end panels of the crib 
under this 80-pound force. 

This particular crib would not comply with that requirement. If 
you apply an upward force, as you might when you are making up 
the bed, these brackets that attach to hooks on the end panels will 
disconnect. And in some cases a baby has been put to sleep in a 
cnb with one of these disconnected, unknown to the parent, and 
during the night the baby may move over to the disconnected 
corner. And if this has completely disconnected, there is no support 
and the child can either fall completely out of the crib or, worse 
still, become trapped between the mattress support and the side 
rail. 

So the industry is responding for prospective production on this 
particular problem. 

Senator Hasten. Thank you both very much. 

We have a vote on the floor, and what I think I will do before 
Mr. Aaron Locker appears is I will recess the subcommittee hear- 
ing for approximately 5 minutes while I go to vote, and we will 
come back and resume at roughly 11:15. The committee will stand 
in recess. 

(Recess J 

Senator Hasten. The committee will come to order. 

Our next witness is Mr. Aaron Locker. Mr. Aaron Locker is 
counsel for the Toy Manufacturers of America. Mr l^ker, we are 
happy to have you here with us today. 



31 



STATEMENT OF AARON LOCKER, COUNSEL, TOY 
MANUFACTURERS OF AMERICA 

Mr. Locker. I am happy to be here thh} morning. Senator, par* 
ticularly to express the views of the Toy Manufacturers of Amer- 
ica. 

TMA dora not oppose the principle of equivalency of r^alation. 
We believe, as you do, and as Kepresentative Wasunan on the 
House side does, that consun^r products other than toys, and toys 
should be r^ulated witihi respect to iKii|udicative proceeding under 
section 15 of the CPSA in the same way. The extra step in rule- 
makmg is not necessary. 

We do, however, wkh to emphasize that what we do prefer — 
what we do not oppose— is equivalency, and this bill as introduced 
is ffiigniflcant in mat, in <me important respect, it fails to provide 
that equivalency. That is, the bill rraches nondefective toys and 
other articles intended for use by children which prasent substan- 
tial risks of ii\iury, either by virtue of the paltem of the risk, the 
number of products which present tli^ risk, tl^ severity of the risk, 
or otherwise. 

We believe that language is not the same as that whidi is con- 
tained in sections 15 (c) and (d) of the Consiuner Product Safety 
Act, because what it omits is the requirement that the imxiuct— 
which prints the substantial risk of injury — also be a defpctive 
product If you review secticms 15 (c) and (d) ^ the Ckmsumer Prod- 
uct Safety Act, you will observe that the omceiA of sutetantial 
hazard and the right and power of the Commission to reach prod- 
ucts for recall purposes applies only to defective products. 

In our comments, therenire, we nave recommended that your bill 
be amended to apply to defective toys and d^ective childen's arti- 
cles which present substantial risks of iiyury- Furthermore, as you 
will note from the array of products here, the bill reaches all arti- 
cles intend^ for use children, not only toys. We recommend 
therefore that the title of the bill be changed from the Toy Safety 
Act of 1984 to the ChUd Protection Act of 1984. 

I am told that that title may have been preempted by some chil- 
dren's pornography legislation* If that is the rage, we are amenable 
to anotl^r change which do^ n<* neceraarily focus entirely on 
toys, to be called the Children's Safety Act, the Children's Safety 
and Protection Act, or some other title which is suitable. 

Since I have been at this process for a long time, having t^ified 
originally in 1969 upon with the Toy Safety and Child Protection 
Act which gave rise to the Federal authority to reflate children's 
product hazards, Fd like to take a somewhat different perspective 
this morning and really ask the question, why are we here? 

The bill, known as the Child Protection Act and Toy Safety Act 
of 1969, h^ been law for 15 years. Why suddenly, after 15 years, is 
it necessary for the Congrew to address the iffiue of the extra rule^ 
making' step? What has happened to suddenly bring to bear the en* 
ei^es if both Houm of Congress and the testimony of consumer 
groups and the Commission on this extra rulemaking step that has 
been around for 15 years? 

There is a very simjcrfe answer, and Commissioner Scanlon 
touched on it very briefly. I would like to elaborate on it more 



ERIC 




28 



fully. Since the (>>nsumer Product Safety Amendments of 1981— 
and by the way, you may recall, Senator, that I testified during the 
hearings on thoae amendments, which dealt rather extensively 
with the revision and overhauling of the Communion's rulemaking 
process— it has been our experience that, especially in the area of 
children's products, the Commi^ion has totally abdicated rulemak- 
ing in favor of adjudication under section 15 of the CPS A. 

It has not undertaken and adopted since 1981 any propc^al to de- 
velop a rule or standard for children's products. Rather, it has de- 
cided to proceed by adjudication and recall under section 15. 

The defenses urged by the manufacturers, whatever the merits 
may be — and I do not wish to go into them right now— included, 
among others, the question of the nece^ity or I^ality of the Com- 
mission's findings under section 30(d). 

I should say that the extra step which this act will eliminatet 
that of making a flnding under 30(d), can be taken by the agency in 
30 days. I do not know why it has taken longer, as much as a year. 
But I do know that the reason the Commission has resorted to this 
extra I^islative effort has been its total abdication of rulemaking, 
its total abdtcction of the letter and the spirit of the 1981 amend 
ment with respect to rulemaking, and the carefully crafted provi- 
sions for cost-benefit analysis, regulatory flexibility determinations, 
and the prcxredurra for advance notice of propowd rulemaking. 

The very considerable evaluations which have to be undertaken 
by the agency as a precondition to the promulgation of a rule have 
been totally ignored in the rush to adjudication. And in that rush 
to acUudication this difference in treatment of toys on the one 
hand, and other consumer products on the other, arose or became 
apparent. 

I would therefore direct your attention, Senator, very respectful- 
ly, to the fact that there has been a total flouting of the congres- 
sional will and intent incorporated in the 1981 amendments by the 
Commi^ion's having abdicated rulemaking in favor of adjudica- 
tion. And that is why we are here today. 

Again, we are not here to oppose your bill, only to ensure the 
equivalence which both you and Representative Waxman sought. 
At your conference announcing the proposed legislation, you said 
you wanted to remove dangerously defective toys and other chil- 
dren's articles. We think the concept of defect, which I was pleased 
to hear you announce this morning was incorporated in the House 
bill. Is essential, and in our written comments we have submitted 
suggestions and proposals for amending the bill to introduce the 
language which appears in the Consumer Product Safety Act, and 
which is applicable to all other products, into this legislation. This 
would provide equivalency, namely, to reach only those defective 
toys and children's articles which present substantial risks of 
injury. 

Having said that, I would like to thank you for the opportunity 
of ap^aring, and I would be happy to answer any questions you or 
your staff might care to pwe. 

Senator Kasten. Mr Locker, thank vou, and I appreciate your 
thoughtful and helpful criticism. I think we all agree— I know we 
all agree — that the purpose of this legislation is to make the same 



3 J 



29 

procedures apply to the recall of toys and children's articles which 
currently apply to the recall of most other consumer products. 

In my discussion with Commissioner Scanlon and also in the 
question to Commissioner Steorts— Chairman Steorts, I think it is 
clear that we will make that technical change so that it does apply 
to defective products. The goal is to make the provision in the Fed- 
eral Hazardous Substances Act equivalent to the provision in the 
Consumer Product Safety Act, 

Mn Locker. We appreciate that. 

Senator Hasten. We will go forward* I aim am particularly in- 
terested in your comments* I listened carefully when Commissioner 
Scanlon touched on this whole rulemaking versus recall process^ 
and you have been much more direct. 

It is this subconunittee— this chairman—that wrote those 
changes. 

Mr. Locker. I remember very well. 

Senator Hasten. Working with you and with others. And in no 
way do we want to take away the recall* I do not in any way want 
to eliminate the recall. I want in fact to expedite the recall procew 
when it is needed. But that ought not to take the place of the proc- 
ess that we worked so hard to try to establish in that bill of rule- 
making and of a consulting kind erf* process. 

So I appreciate your comments and I am sure that the subcom- 
mittee will take them into consideration as we work on our period- 
ic review and reauthorizations of the Consimier Product Safety 
Commission. 

Thank you very much for your testimony. 

Mr Locker. Thank y<m. 

[The statement follows:] 

STAmcKNT OF Aaron Locku, Oounhel, Toy Manufacturers or America 

We represent Tdy Manufacturere rf America, Inc. (TMA). TMA m a trade ^socia- 
lion of aomestic mantifacUirera aod importers oi tosrs, gaima ami OuriaUtias deoHa- 
tioi^ whaee memliefB acootmt fat 90 percent hy i^ome <4 the appradmately r> 3 bil- 
Iton doliars in anntml aalae of toy% gamra and decoratim^i at the whcrfiMik level 

TMA has received a copy oi the Bui you propose to intsoduoe in the Senate com- 
monly referred to as the Toy Safety Act of 1984. TMA mil»nits the foUowtng com- 
ments on the Bill: 

1. The iiile.-The BUI m enUttod the Toy Safety Act of 1^. Tl^ Bill, hoi^vver, 
seeks to regulate not only toys but otlMfr artkles intended fcM* use by children. As 
such its scope is very broad. Sei^ral example of allegedly dangerous iKroducts ex- 
hibited at the press conference intniducii^ the Bill, iiKltkied children's artkies 
other than toys. For that reckon . TMA suggests the BUI be renamed the OiiW Vrth 
tection Act of 

2. Absence of defect and failure to pmnde equimlency with proviaians of section 
!S<b/. M and (dJ of the Consumer Product Safety AcL—EkAh you and Representative 
Waxman at the time of the introduction of legtelatioii indicated that Ute BUI pur^ 
ported to seek equivalence^ with the provi«<ms of the CoMumer Product Safety Act 
(CPSAi. The repeated reference m^ that toys and other children's aitides 
shouki be treated the same way ^ toilers for the purpose of apfiyit^ the reme- 
dies of Section 15 and that recidls should not be deiayea i;^yaiwe or the necessity of 
transferring the rrgulatim of a id iiyury from the Fedml Kanrvlow &ib- 
Btames Act to the Consumer Product Safety Act. TMA does not oppose mieh actkm 
in pHmriple, however, it does of^pose the provi^ons erf* the BiU which do not provide 
such equivalency. 

We are annexing a copy of tl^ BiU as revved by us in such manmr tm to insure 
equivalency In essence we are proposii^ luit the laiyuage wfakh would permit ad- 
jiKlicative |m)oeedin|^ agiainsi toys or othei chiMren^ articles that contain defects 
which present a substantial risk of injury ts essentially the same m that contained 



" 37-679 O - 84 - 5 




30 



in Section IThcm and td» of the (TSA. We have done m by incorporating the language 
in Section IThc^ and (di of the (^PSA in the text of the Bill amending Section 15 of 
the FHSA. to |>rovide for nottftcaticm and repair, replacement or refund of toys or 
other children ^ articles which are determined by the Commission to contain a 
defect which presents a substantial ri«k of itxjury to childrvn We believe, it is only 
toys or other articles which contain a defect which should be subject *o this provi- 
sion Adopting the phrafK* "defective toy or other article** as it appears in the 
amended text of the Bill, will, in our opinion insure equivalency with the provisions 
uf Section I'x^cJ and id) of the creA sr#d r-MI achieve your aim. 

If the reac*^ of the statute* is intended go beyond "defective*' to^ and other 
children's arv.^les, TMA opposes such legi^tion as unwarranted, since, unlike rem-^ 
edies for other consumer product contained in Sections UiHc) and idl it would allow 
the removal of nondefective products. If a defect exists for any re{»on (i.e., construc- 
tion, manufacture, or design, etc.l which creates a substantial risk erf" injury the 
(Commission, under our proposal, will be given authority to remove the defective 
prcKiuct fmm the stn^m of commerce. We do not believe that a regulatory agency 
should be given the power to remove nondefective products from commerce, nor do 
we believe that such power is being sought or is intended to be conferred upon the 
(om mission by the C^gress. 

Note the provisions of the National Trafltc & Motor Vehicle Safety Act (Section 
ir>4(uHln which like the CPSA also limit recalls to defective vehicles or equipment 
which relate to motor vehicle safetv. See also the provisions of Radiation CxHitrol 
Act. St*ction i^V.f which also provi<ie for a^iudicative recall of defective products 
within the purview of the statute. 

l\ Imui unite examples of pnxiucts.— The two examples of defective tovs given at 
the presir conference which were allcgwlly delayed in recall because of the requests 
of Sii'tion :<(Nd> of the CTSA were not entirely correct. 

The defii'tive string-suspended-stufTed toy was immediately voluntarily recalled 
by the nianufticturer, who engaged in extensive recall efTorts. Similarly, there was 
no delay in the recall effort undertaken for the saueeze toy which you exhibited. 
That toy was also immediately voluntarily recalled by the manufacturer. *nie 
M|ueeze toy in question was n<rt the issue. Two other manufwlurers whose toys had 
never been involved in ii^jury or death, butt whose toys were nonetheless the subject 
of the n*call request, and who (4>jected to tW determinati<m that the toys presented 
an alleged substantial risk should have been cited as examples. Those toys were al- 
l<*gedly similar to the recalled squeeze toy. When the manufacturers ctm tested their 
similarity and associated risk and sought a hearing with respect to these issues, a 
rulemaking proceeding to transfer rrak of injury from the FhSA to the CPSA was 
Ifegun Subsequently the two manufacturers voluntarily recalled these toys without 
the need for additional (^ommissk>n action. 

4 Inciusum of the term rriatler. -To further insure conformity with the provisions 
of Section Ifiici and (d) of the Cxmsumer Product Safety Act we suggest aAd support 
the substitution of the term ''retailer ' in lieu <rf '*ck«ler** whenever this term ap- 
l>eaf-s in the Bill 

TMA therefore respectfully requests that the proposed Bill be amended as set 
forth in thi.s letter and in the annexed draft, which has been modified to reflect 
thes<* changes. 

Attachment 



A hill to enable fhe Connumer Product Safety (^mmission to proUxi the public by 
ordering notice and repair, replacement or refund of certain toys or articl<*s in- 
tencleti for u.se by children if such toys or articles amtain defects which create 
sul>Htantial risk of injury to children 

He it enacted hv the Senate and Hai4se (ff Reptrsentatttrff nf the United States of 
Amvnm in ('impress assemhled That this Act may be cited as the Vhiid Pn^teetion 
|Toy Safety} Act of 11184.'* 

Sw 2 <a> Section 15 of the Federal Hazardous Sub^nces Act (15 U.S.C. Iir74) is 
amended -m subsections (d>, <e> and (f), respectively; and 

^2) by inserting immediately after subsection id) the following: 

"^cNli If the (\mmis»ian determines that any toy or other artk:le intended for use 
by childn*n that is n<H a banned hazardous sufaatance cmtains a defect which cre- 
ates a substantial risk of injury to children (because of the pattern of the defect. 



jSTAFF WORKING r)KA^T) 



Aprii. Itl. 11IH4 



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31 



frifik,] the number erf* defectwe ptoducts dUtnhuUd in comment [torn or sudi arlktes 
presenting a rkk], the aewrity ot the rkdk« or c^herwisel and the Comsmston deter- 
mines (after aflbrdii^ intern^ paracmap <indudti% coimumerB and cmmmier oiiga- 
nisatt<m8, an c^iportunity for a tearing tn (mordance with the pmvi9ian$ sub^- 
UiM (e) that notifkatim » required to sdecfuatriy prefect the puUic from swh toy 
or article, the Commia^m may order the manuCacturer or any distributor or retail- 
er [dealer] or sucA [the] toy or article to take any me or more of the fotbwing ac- 
tkma: 

''(A^ Tb give puMic miCioe that «&cA defective [the] ti^ or artkle cmtea a sub- 
atantiaJ riak of in^ry to childrm. 

'*(B> To mail mudi notice to aadi perms who is a manuiaclurer, dutributor or 
reittiler [dealer] such tpy or article. 

'*(C) To mail such notice to every person to whom the persm giving notice 
knows Mich (b^ecHt^etas or article. W99 delivered or aoM. 
An order under thte pariigrG^ diatl E^pedfy the form and content oi any notice 
required to be given unwr the order. 

*\2) If the Committaion d^ermi^ that any mu:h tle/ective toy or article intended 
for use by chiklren that » not a banned hasardoitf sidistame o^mtee a m^Mtential 
risk of ii^ury to chiMrm {because of the pattern ^fkfect [rwkl the number dTde^ 
fective prvducts dktributed in oomnseroe [toys or such artkdes presenting a rwkl the 
severity of the risk* or cUwrwme) and the Oommt^on detmnines (afta- aflbitling 
inlere^^ persona, indikUng ooimmim and oomumer (Mganiiattom, an opportoni- 
tv for a hearing) in accordance with the procisiona of subsection (e) that actkm under 
tlw paragraph is in the public interert, the Commiarion may <mler the manufactur- 
er, <&tributor at retailer [tealer] to take whidiever df the following actioiw the 
peraon to whom the orfer is directed electa: 

"(A) If repairs to cmt changes in the toy or article can be made so that it will 
not contain a defect which credtas a substantial risk of ii\fury to diiMren, to 
make such repairs or changes. 

"(B) To replace such toy or article with a like or equivalent toy or article 
which does not contain a defect which creates a substantial risk of iiyury to 



•*(C) To refund the purchase mce of such [the] toy or article (lesB a reasonable 
allowance for use, if [the] toy or article has been in the posseseoon of the 
consumer for one year or more — 

"(i) at the time oi puUic notice under paragraph (IKAX or 
Xu> at the time the oa»sumer reeetvca actual notice tnat the tAjy or arti- 
cle contains a defect which creates a substantial risk of injxiry to children, 
which first occurs). 

'*An order under ihxi paragrafrii may also require the person to whom it applies 
to submit a |rian, satkiactonr to the CommiaBmi, for taking the action which such 
persm has elected to take* The Commtasiwi dball i^peci^ in the order the peraon to 
whom refunds must be made if tlw person to whcmi tiie order is directed elects to 
take the actira described in mil^iaragTaph (Q. If an <mier under this par^rai^ m 
directed to more than one perm, tbe Cramiismn riiall Bpedfy which pawn has 
the electim umler th» paragraph. An onfar under this paragraidi may jHi^bit the 
perKm to whom it ap|ities from manutac^uring for sate, offering for wle, distribut- 
ing in commerce, or importing into the customs territory of tl^ United ^ates (as 
ctefmed in general hewlnote 2 to the Tar^ Schedules of the United ^tes), or from 
doing any combinatloii «^ mich actios», with respect to the toy or artkle with re- 
spect to whidi the order was mmMed.*\ 

(h) Section IfkdKl) of the Federal Hasardot^K Substainres Act, aa so redesignated by 
Bubsectim (a) of this secticm, is amended by striking "subsection (b)" and inserting 
in lieu thereof "subsectim (b) or icy\ 

(c) Section 15(dK2) oi such Act, as so redesignated by subsection (a) of th» section, 
is aminided by imertii^ ''toy," immediately befwe "articte" wherever it af^iears, 

(d) Section 15(dM2) and (e) of such Act, as so redesignated by stdbaection M of this 
section, is amended by striking *'mihaecti<Mi (a) <»■ (bf' and inserting in lieu thereof 
"mjbaection (an <b) or icf. 

Senator Kaoten. Our next panel includes Mr. Greenberg, Mr. Sil- 
bergeld, and Ms. Meier. Our first v^tnew will be Mr. I^vid Green- 
berg, who is the legislative director of the C^isumer Federation of 
America. Mr. Greenbeiig. 



children. 



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32 



STATEMENTS OF I>AVID I, GREENBERG. LEGISLATIVE DIRECTOR, 
CONSUMER FEDERATION OF AMERICA; MARK SILBERGELD, DL 
RECTOR, WASHINGTON OFFICE; AND MICHELLE MEIER, COUN* 
SEL FOR GOVERNMENT AFFAIRS, CONSUMERS UNION 

Mr. Gkeenberg. Thank you. Senator Kasten. On behalf of CFA s 
200 organizations and their 35 million members, I would like to 
thank you for the opportunity to testify on S. 2650, the Toy Safety 
Act of 1984 or the unnamed Mt of 1984, depending on 

Senator Hasten. It will have a name. 

Mr. Greenberg. We want to offer our full support to this legisla- 
tive effort, if not to the renaming effort. We hope to assist you in 
putting a bill on the President's desk during this session. 

When the public is asked about the important tasks for Govern- 
ment action, toy safety stands at the top of the answer list. The 
Lou Harris survey, ''Consumerism in the Eighties/' provides strong 
evidence of this i^ntiment. Fully 88 percent of those surveyed felt 
that Government should approve new toys before they are allowed 
on the market. Imagine the response to a question about removing 
unsafe toys from the market. 

Given this paramount concern about effective regulation of toy 
safety, it is ironic that we have given regulators weaker enforce- 
ment toots in the tov safety area ^an in many others, and it is this 
inequality that S. 2650 i^ks to rectify. 

Now, you have seen the examples, you have heard from the Com- 
mission, you understand the time involved and the obstacles in- 
volved in the current r^latory process. So I would just like to be 
as brief as possible and give you three reasons why we think this 
le^slation is necessary and necessary right now. 

First, the failure to enact legislation is a failure to prevent pre- 
ventable inyuries and deaths* Ine (felays of months and years force 
upon the CPSC by its inadequate procedures inevitably will keep 
certain dangerous toys on the market long enough to cause unnec- 
essary accidents, iryuries, and deatl^ 

Second, it is not the safety conscious toy manufacturers that 
would be harmed by the enactment of S. 2650. Such firms agree to 
voluntary recall plans as soon as they learn about the hazaixls cre- 
ated by their toys. It is the recalcitrant toy companies that S. 2650 
will affect. But if this legislation passes, no firm will be able to 
gain a small advantage over its competition through procedural 
delay, as is the case right now. 

Third, the toy safety procedures problem illustrates that the 
Ci^SC needs strong mandatory powers to enable it to maximize vol- 
untary Government-industry cooperation aiid to minimize com- 
mand and control regulation. The weakness of the Commission's 
power in the toy safety area does ncrt create le^ regulation. In- 
stead, it only serves to draw out the regulatory process, to the ad- 
vantage of the least public spirited industry members. 

In contrast, the stronger procedures accorded the CPSC by S. 
265() would shorten the regulatory process and reward firms that 
put safety first. So we believe the record is clean Hazardous toys 
must receive equal treatment under the CPSC's governing statute. 
S. 26*50 provides that equal treatment by making a series of simple 
conforming amendments. 



37 



33 



We ui>re you to encourage the committee to act favorably on this 
bill as quickly as possible and we offer any help we can provide. 
Thank you. ^ 
[The statement follows:] 

Statement m David I. GRCBNBEmi, UctmjiTivE DiRBmiE, on Behalt of 

CONSUlf KK P^MSEATION OF AftCBSfCA 

Mr Chairman and Members of the Sidicommittee, I am D^vid I, Greenbei^, Legis- 
lative Director of Conmtmer Fecferatkm of America (CPA I the nation's largest con^ 
sumer advocacy organizatkm. On behalf of CFA'» 200 arsamiaUonfi and their aS 
mUhcw members, 1 would like to thank the Chairman for Om opportunity to te^fy 
on S 2650, the Toy Safety Act of im. We want to ofTer ourSil supf»ft to this 
legwlaUve effort; we hope to asaasi you in putting a bill cm the Pre^dent's de^k 
dunng this semion of Omgrew. If we can acccmnrikOi that t^, the children oi thm 
nation will suffer fewer iiuunes ami deaths from hazardous toy»» and the parents of 
those children wiJI be subject to less anxiety over tlwir children's safety. In the long 
run. everyone will benefit, im:ludinir toy nmnufacturers, becai^ consumers with 
greater confidence in toy safety will be willing to buy more toys. As a coimquence, 
we believe that toy manufacturers and their trade asmriations shouM join in sup^ 
port of S. 2dfjO 

When the public is asked about the important tasks for gowmment action toy 
safety stands at the top of the answer list. The Lou Harris Survey, "Consummerism 
m the Eighties,' provkies stroi^ evidence of this sentiment Fully W% of those sur- 
veyed felt that government should approve new toys before they are allowed on the 
market. Imagine the response to a que^ion about removing uiu^afe toys from the 
market. 

(liven this paramount cofKem about effective regulation of toy safety, it is ironic 
thai we have given regulators weaker enforcement tools in the toy safety area than 
in many others It is this inequality that S, 2650 seeks to rectify. 

We have no clue about the rationale-- if any— for deeming hazardous toys less 
worthy of speedy corrective action than other dangerous products. Neither are we 
knowledgeable about or interested in tl^ underlying historv. What we know and do 
care about IS the fact that it can be months, even years. longer for the Consumer 
Product Safely rx)miiMion (CPSCi to rid the market of hazardous toys and children's 
products. In the case of nmi-children's products, the Commission can proceed to 
recall hazards under its Secti<m 15 authority. In the case of toys, however, the CPSC 
must first iHticeed through a J«gthy rulemaking under Section 3(ei of the Fec^ral 
Ifazardous Substances Act (PHSA>. or through a * transferring action * under S«-c 
V^'^rti^^^' C\)nsumer Product Safety Act (CPSA), before resorting to Section 

1) The former procedure will take one to two y^rs, absent legal challenges The 
latter Section :¥Md> action takes several montbi at minimum. Moreover, the vitality 
of :¥hd^ actions has been called into question by the Fifth Orruit Court of Appeals' 
decision overturning the CPSCs ban on formaldehyde insulation What we are left 
with IS a problem— toys that kill or injun— that can strike at any moment, coupled 
with a ' solution" that moves with the speed of summertime in Washington m the 
days before air conditioning. It is a tragedy waiting to happen. 

(i*SC case histories suggest that it is a tragedy that has happened, I>et me give 
two examples The first involves suffocation <k»aths cau^ by the ends of certain 
!*qm-ew toys, which the C^ommission learned about on lift<l and Out of twenty 
one affecti'd manufacturers, two firms refused to agree to voluntary recall proce- 
dures, forcing the CPSC to umfcrtake a md} action. The final Midi rule was n<it 
ussued until January !*m4. Shortly before that rule became final—which would huv«- 
triggered the Commission s authority to order a recall— the two holdout firms 
figre^'d to take corrective action. 

Second, m October and November of 197*1, the CPSC staff received reports of 
strangulation deaths associated with certain stuffed toys. The C^mimission negotiat- 
ed a corr<»ctivt* plan with thf manufacturer apiiroxtmately two months laU'r. but 
the company balked at additional action the CPSC sought in Ajn-tl \mi It look the 
Commission until June 1*1X2 to pursue :¥Hd\ procedures and authorize a complamt 
against the company; fmied with that complaint, the manufacturer agreed to a vol- 
untary plan 

There are other examples, but these two illustrate the main reasons that S 2fi.V> 
IS f>ece«»iary and nei^essury right now First, the failure to enact legislation us the 
failure to prevent preventiible injuries and deathi^ The delays ol months and vear»J 



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38 



34 



forei'd upon tht» C\*t^' by it» mad<*quaU' ptxicedures inevitably will keep certain dan- 
gertnu) toys on the market iottg enough to cau^ unnecawery acctdenta. 

Second, tt is not the »afety<oiMickHw toy manufacturerB tliat would be harmed by 
the enactment of S. 2650. Such firms agree to voluntary recall plana m soon as they 
learn about the hazarda created by their toys. It is the recalcitrant toy ocmpanies 
that S 2650 will affect. But, it this legislatton pmrnen, no firm will be able to ^tn a 
nmall advantage c^^er its competition thrtHigh procedural deiav, as is the case today 

Third, the toy safety procedures problem illustrates that the CPSC i^e<te strong 
mandatory poweni to enable it to ousimise voluntary ga/errment/indu^ry coop- 
eration and to minimise coromaml-and^ontrol regulatkm. The weakness of the Com- 
mission B power in the toy safetv area does not crrate less reflation. Instead, it 
only serves to draw out the regulatory proom to the advanti^ of the l&m public^ 
spirited industry members. In contrMt, the stronger procedurf!S accorded the CPSC 
by S 2H50 would shorten the regulatiH^ proceas and reward firms that put safety 
firBt by incre^ng the (^.onimtssion s leverage to bargain with firms temjp^ to ele- 
vate profits above the nee^ of fwbltc safety. 

CVA believes the record is cirar Ha^rdow toys mu^ receive equal treatment 
under the CPSC's governing statutes, S. 2650 provides that equalitv by making what 
should be considered a series of simple conforming amendments. We urg^ this Sub- 
committee to act favorablv on this bill m soon as possible. Our nurseries and our 
playgrounds will be safer mr the e fTort. 

C^Humer Federation of America would again like to thank the Subcommittee 
and its (*hairman for this opportunity to testify. We stand ready to ^ist you in any 
way we can 

Senator Kasten. David, thank you very much for your testimony 
and for your support on behalf of your consumer organizations 
across this country. 

Our next witness is Mr. Mark Silb<:rgeld, who is with the Con-^ 
sumers Union. Mr. Silbergeld. 

Mr. SiLBEHOELO. Thank you, Mr. Cnairman. We also appreciate 
the opportunity to appear in support of this bill. 

Thf procedures under the Federal Hazardous Substances Act are 
too cumbersome to deal with a dan^rous toy on the market, and 
the transfer procedures which permii the Commission to deal with 
the product under tine Consumer Product Safety Act, for whatever 
reason, take too lopg. And in the meanwhile* of course, hundreds of 
thousands of children may remain at risk from a popular and 
widely distributed product that presents a risk of injU"T or death. 

So we believe thaf this bill should pass promptly ano we will do 
everythinjf we can to help you move it along. We also believe that 
the same improvements in the transfer process should apply to 
other products: that art subject to the Federal Hazardous Sub- 
stiinces Acl and that the judicial review process should be im- 
proved by taking initial judicial review out of the Federal district 
courts. 

But we are not tying those improvements to this bill, because we 
underjtand the importance of moving this bill promptly through 
both Houses and onto the President s desk. 

1 am going to ask niy colleague, Michelle Meier, who jh the 
senior litigator in our office, to describe briefly some of the proce- 
dural reasons why the law as it presently stands does not work and 
what we think should be done about judicial review. 

Skruitor Kasten. Michelle Meier. 

Mr. Mkikr. Thank you very much. I too am very pieaped to be 
here. Senator Kasten, and commend you for intrc^ucing this im- 
fx^rtant piece of consumer legislation. I think it is important to 
clarify exactly what type uf situation we are dealing with when a 
recall is in order. 



;i5 

We are not dealing with products that are presently still in the 
warehouse of the manufacturer. Rather* a recall situation is rele- 
vant to the time when a product has already passed through the 
distribution stream and is in the hand of ttW consumer. At this 
point it is extremely important for rapid action. 

The Commi^ion neeas the authority to either voluntarily or in- 
voluntarily move the manufacturer or distributor to warn the con- 
sumer of the hazard powd by the product or, if the hazard is i^vere 
enough, to have it recalled from the home of the consumer. 

I think it is important to clarify, contrary to what the hearing 
today has implied so far, that not all products that are <^igned for 
adult use are subject to an afTective recall procedure at this time. 
At this time only one of the CPSCs m:t8, the Consumer Product 
Safety Act, has an efTective recall provision. Thm is section 15. 
Your bill, S^iator Kasten, is modeled after action 15 of the CPSA. 

The CPSA, it is true, governs adult prodircts. Toys are separately 
handled under the Federal Hazardous Substances Act. However, 
the Federal Hazardous Substance Act also governs a vast variety 
of products that are intended for ikIuU use. 

Additionally, the CPSC regulates products under the Flanunable 
Fabrics Act and the Poison Prevention Packaging Act The latter 
two acts have no recall provision whatsoever. The adult products 
governed by the Federal Hazardous l^bstances Act at this point 
will only be subject to recall once those products have been baiined 
pursua) t to a fomml regulatory proceeding, which is very tiroeK?on- 
suming. L. other words, a recall situation can anse and frequently 
does arise before a product has been subject to a banning rela- 
tion or standard wttuig. 

A qnick look at the Code (tf Federal RegulaticHss reveals that 
urKksr the Federal Haardous Substances Act the Coanmiasion has 
projiulgated few bans and few standards. Ccmsequently, tl^re are 
ma ly products on tlw mai^et presently that could be discovered in 
fut ire yrars to cause substantial harm. 

A3 you are well aware, products' toxicity problems frequently 
only we discovered after years of rsa^rch. It m impmsible for the 
Commission to anticii^te every type of harm that the producta 
within its jurisdiction might pow. Consequently, in cases like this 
rulemaking, standard setting, or banning is not possible nor appro- 
priate. The recall authority is vital. 

The recall authority is also relevant even where there has been a 
standard or a ban promulgated in connection with an adult product 
or any other product regulated by the Commission. This is not a 
prc^Iem under the Fecteral Hazardmis Substance Act because a 
product that has already been banned is subiect to recall. 

But under the Flammable Fabrics Act and the Poison Prevention 
Packa^ng Act, a product that has already been banned or violates 
a particular standard under the FFA may have been illegally dis- 
tributed into commerce. However, the Commission is not able to 
use its if\)uncti<m authority nor its seii^ire authority to get to those 
products that are alreiuiy m the hands of the omsumer, in the con- 
sumer s home. Only a wction 15 type recall provisicm will protect 
the consumer in this type of situation. 

So we hope that the ccmmiittee and ^ou, Sratator Kasten, will 
consider expanding the scope of the section 15 recall procedure for 



40 



36 



the situations in which standard setting is not appropriate and ex- 
peditious action is necessary. 

Finally, again toward improving the speed of recall procedures, 
we encourage you to consider introducing legislation explicitly stat- 
ing that any appeal from any Commi^ion recall order is to go di- 
rectly to the courts of appeal, rather than to the district court. 
Unless there is an explicit statutory provision U) this effect, the 
appeal will begin in the district court and proceed to the court of 
appeals. Obviously, this makes for a very protracted proceeding 
and contradicts the purpc^ of the recall, which is expeditious re- 
iroval of the product from the consumer's home. 

Thank you very much. Senator Kasten. 

[The statement follows:] 

Statkmknt or Mark Silbkrgeld, EhREcros, Washington OmcK, and Michi^jxe 
Meikr. i:ounsei, ron Government Aftairs. Consumers Union 

Mr Chuirman and membere of the Subcommittee. Consumens Uniun * appreciates 
ibis oppt^rtunity to tell you why we support S. 2(»50, which authorizes the Conmimer 
Product Safety Commission (CPSO to regulate children's toys under a procedure 
modelled after Section 15 of the Consumer Product Safety Act. The bill would enable 
fhf <'<immjj«ion to act speedily and efficiently to protect the public if a particular 
prciduct to which tin procedure appt^ creates a subetantiai risk of injui> It would 
make spt*e<l and efficiency possible when speed and efficiency are of paramount im- 
portance 

Wf alj!io urxe you to make the Section 15 procedure applicable to all products 
within the juri.sdiction of the CPSCl The exp<*diU»d notice and recall provision of S 
•JfjrH* only applies to children's toys or other articles intended for use by children 
The CPSC shiHiId be jfiven the power to invoke the Section 15 notic** and recall pro- 
cedure when any prt)duct within ii» rej^ulatory c^trol poses a risk of substantial 
injury Further, the bill should explicitly limit judicial review of a notice and recall 
order to the circuit courts of appeal. 

PR<K KUi'KAL SC*HRMeS OF THE STATtms UNDER WHICH THE CWH* OfKKATKS 

The CPSC* operates under four major statutes: the Federal Hazardous Substances 
Act <FfISAi. the Flammable Fabrics Act (FFAi. the Poison Prevenlion Packajfing 
Act <PPPAi. and the Consumer Product Safety Act (CPSAi. At this time, only the 
(•f*S<' and the RISA have any notice and recall proviakm The notice and rpcall 
provL*Jiofi of the CTSA. Section 15, is far superior to that of the FHSA for several 
rervs<iiu> 

Section allows the (^/ommission to institute a notice and recall hearing if a 
product drstributc^d in commerce "present* a substantial product haasard " 15 IJ.S C', 
Stvliori 2<n;4 (CP and idi The product need not violate a previously promulgated 
product standard to tri^i^ the notice and recall section. Rather, under subsection 
ii(H;4(uK*^J, a '^substantial product hazard'* includes "a product <fc»fect which . . ere- 
itt<-s a substantial risk of injury to the public.** 

.Svtlon 15 gives the C<immif«ion the flexibility needed to respond to varying quan 
tititrs «nd qualitii-s of product risk. For example, if the harm will only occur through 
fwirticular foreseeable uses of the fmxiuct, the C^mimission may invoke Section 15 to 
if^^iiir*' lh4 manufacturer to notify the distributor! and purchasers* of this defe^-t so 
(hut hucfi use*> can be avoidi-d. But. if the harm involves for example, severe toxici 
is. the Commission can use iti* authority under S<H:tion 15 to order a full pniduct 



» (•<lrI^ufIwrH Unnm tt* A notiprofit mtfufaerehip oqcanizaUon chartered in !9JW> under the laws 
i>i f Sirtt^ oi Srm York to provuk* infarmiition. educatKin. and counfirl about ^xwwtwnier gtm^ 
titni t^rvi('#-s &nd the rrtanagement of the family mctmie Consumi?r» llnicmB iii€ome m derived 
HiiW\y irvtn the »ale trf Coiwumer Reports, its order pubficatioro, awi filnm. Kxpem»« of ocTaHion- 
;ti public HervuT eflorti* may be met, in |»rt. by aonrestrictive. nonornnmercial grantu and fe«* 
in addition Ut rvporti* on CkmsumerB Union's own product testiiu<, Conmmer Reports, with op- 
pn»»imately 2 tnillKm Circulation. rnKularly camca articief* on Imlth. m^odud safety, fiwrket- 
pim-r ♦xof>ofiiM>*. t»nd leiniiiativf*. judicial, and rr^latory actkms which afiert confiumer welfare 
ConhumfTh VnMn'fi puWirationH carry no advertising and receive no c«imiercial suppon 




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37 



It is true that the PHSA also contaim a noUce and recall proviskm that is sub- 
stantially mmilar to Sectkm 15 the CPSA. However, the PHSfA pniviston explicit- 
ly apfdtes only to products that have already been banned by tl^ CkMoun^sion. 15 
iJ&C. Section 1274. Banning occurs rnily as the result ct a lengthy rulemaking pro- 
ceeding. 

Tteosetically, the Oommbsum can tempcKwity cimBiN a mtiduct as banned and 
then invoke the notice and recall sectkm of tim act pending the uraance crfa fomal 
banning re^lattOD. In cases invr ' idng articles not intended f<^ use by duldren, tii^ 
product may be temporarily classifiai m bamied if the CommisBioQ fimb that the 
distribution for hou^hold use of tl^ hasardow substance involved presents an im- 
minent haxard to the tiubtic health and pubUshes mA order in the Federal Rcs^ 
ter. 15 U^C Secticm I26UqK2X ^ilarhr, pmding a heariM to ban a diikb«n's ar^ 
tkrle, the Comnwsims may treat the product as banmd if it fin^ by order imMmhed 
in the Federal Regi^ that ''dtetribution c€ the tciy or otW artK^e mmlwd pre- 
sents an imminent hazard to the publk health/* 15 UJSLC l2S2^eXZ) 

The Sectkm 15 mHke and recaU procedure and all other ^tmement tools frtxyvid- 
ed by the CPSA are not afmlkdUe to frndrnts regulated under the FI£SA, PFA or 
PPPA unless the Ccmimimm folkiws Sectkm SO(d) <d the CPSA. Under Section 
'iOidt, the Commkskm, by r^ulatkm« may apply the emcmanient tods ot the CPSA 
to any product within its jurisdkti<m if one of two couditkm is met: (1) the risk <rf' 
injury associated with a conmuner product cannot be eliminated or reduced to a suf- 
ficient extent by action umier the three alternative acts; or (2) it flndb that it is "in 
the public intere^'' to regulate the risk of injury under the CPSA. 

THE IMPOaTANCE OF AN KFFBCnVB NOTICE AND BBCUUX PffOVntOM POa AlX CONSUME 
raODUCTS AND THK fNAMQUACIBB OP THK PUKNT OTATtlTOaY SOIBlfBB 

Where a product is mibject to an effocthe ban <Mr stantbut* the pemJty and in- 
junctive pnymima of the CoromisBim's acts uerve to deter it .miductkm mto com- 
merce. However, if these deterrence mechan»ns fail, or if the ban or staiMlard is 
issued after the product has alreo4y been marketed, mly an eflective noti^ e ami 
recall proviskm will enaMe the Commwston svstamatically and eiqpeditkMisIy to pro- 
tect the puUk from a subst an tia l riA posed bv the product. Although the FHSA 
contains a notice and recall provision that appltes to banned products^ the lad^ of 
any such proviskm in the FFA and PITA b a serkntt defid^urf . 

Further* it m extrememly impc»tant that an efficient oatice and recall provision 
be aimlkable to all products not su^ect to a prevkwdy fMrtmiu^ted ban or sUnd- 
anL A qukk look at the Code of Federal Begulatkxis reveals that the OmuniaBkm 
has bsued very few product bans, and its standanb do not apply to all nroducts 
within its regulatory authority. Consequenlty, many harmful fKraducts can be sold 
legally. They can then be removed fnmi dbtHNttmi und^ a nc^ice and recall au- 
thority. 

C^e reaaon tte CPSC has m^^i^^ in little rulemaking is becauae rulemaking is 
very time consuming ami oontroverual. Ikire impmtan^y, the OommMon camK^ 
almys anticipate the harm Uiat can be caused when a new fnroduct, or an |»tid- 
uct with a new feature ch- a newly dkcovered harmful effect, is marketed. Conse- 
quently, the TOceasity for a prospective ban or stamkutl will nc^ always be evklent 
until the harmful product has already been distritnited. At that pmnt, where the 
product poses a risk of Mibslantial harm, a prospective standard and ban k less rele- 
vant than a procedure to m^ifv the gmblk of the harm and, if neceaBary* to remove 
the prodiMrt from the nmrketplace and the home of the cmmuner. CXmoialy, speed 
IS of the utmost importance. 

The extreme ta«fulness af the Sectkm 15 procedure k reflected by its popularity 
with tl^ CPSC. A recent report premrai for the Administrattve Ckmferem^e of tfaie 
United States ' indicates that the CPSA notice and recall autlKHrtty to Uie CPSTs 
iiK»t frequently t»ed enforcement tocH. the Cmnmisslon has described the Sectim 15 
procedure as an efFicient axKl effective alternative to nilemakiiw. 

The success of the Secticm 15 procedure is eamly explained. The main ot^^ive to 
be achieved when a fNnoduct that is already dktributed poaes a substantial riak of 
barm is speedv notice and, if necessary, recall. A manufacturer's willinaness to co^ 
imerste with due speed in m^h a case can be aevereiy undermined if it kiHfws that 
the agen^ is powerless to act, or restrkted in actif^» in the abarooe of such cockk 
eratson. Because the CPSA notke and recall pt^cedure is direct and relatively 
simple* it gives the Commission a strong hargaming tool when a quick voluntary 
public notifjcation or recall by the roanufi^rturer is in the best interei^ of the public 



' Schwartt sad Adler« /Warf RMtlh. A Jf^mfdy in Nmd €^ fUptur <I>BCg m brr, IflHSl 



ERIC 




Even where indunlry cooperation is absent. Section 15, at le^ at the administrative 
level, promotes the vital speed and efikienc^ that is necessary in a recall mtuation. 
Its efTectiveneas ensures its use. 

By contrast, the FHSA recall procedure is a statutory mase. It requires the Com- 
mission to address the merits of tl^ c^e preliminarilv to determine whether the 
product should be temporarily banned as an imminent hazard. This initial determi- 
nation is then subject to judKrial review. If an affirmative comrlusion is ultimately 
reached on this i^ue, the Commission must then go throu^ a second hearing to 
determine if a notice recall <irder is appivpriate. Even thm procedure m only a 
preliminary one. After the CcmimisBion invokes the imminent hazard i^aiMlard tem- 
porarily to tr^t the product m bann^, the CommisBion must then institute a pro- 
cedure to determine whether the product should be permanently banned. 

The statutory labyrinth leadii^ to the CcmmissicNi s notice and recall power 
under the FHSA operates as a strong deterrent to its we, Sinoe the FHSA notice 
and recall provision was amended in the Comm»^>n has never invoked 

imminent hazard clause temporarily to ban a harmful prodinrt brfore it was subject 
to a formal regulatory ban. Ti^ Commission has never taken the further step of 
ordering public notice or recall oi such a product. Given this involuntary^ enforce- 
ment record, it follows that the ComroiaBi<m hsm little leverage to indiKe voluntary 
recalls of products subject to FHSA regulation. 

Not only is the FHSA procedure cumberscmie, but it involves an extremely high 
standard of harm, i.e., ''imminent hazard" to the public health, that is more appro- 
priate to an absolute bannii^^ procedure rati^r than a notke and recall procedure. 
Because the Commission has never invoked the provision under the FHSA, it is im- 
passible to state how it would be interpreted by the agency or the courts. But, on its 
face, the standaixl is much higher than the "mibstantial nsk of ii^ury to the public" 
test of Section 15 of the CPS A. This, too, hm probably contributed to the failure of 
the Commission to utilize the indirect recmil prwisioris of the FHSA. 

The indirect recall provisions of the FHSA are particularly inadequate for FHSA 
products not mtendeo for use by children because the rutemakif^ procedure re- 
quired for these products is particuarl^ formal and time coiMuming. As a result, the 
Communion has indicated a decided dislike for rulemaking in connectior. with these 
products Because rulemakit^ is a mai^tory step involved in a notice and recall 
for temporarily banned products, it is likely that the Omimta^on will continue to 
avoid the notice and recall procedure under a temporary ban. 

The Commission's treatment of the toxic Urea Formaldehyde Foam Insulation 
^UFHl illustrates the Mency s aversion to the elaborate regulatory hurdles set forth 
in the FHSA UFFI falls uwter the FKSA. However, rather than uUlize the FHSA 
banning procedure to reflate thk product, the Commis..«on attempted to ban it 
under the C^PSA by first invoking Section 30(d) of the latter act. The CTommission 
clearly stated that its purpose in invoking Section '30(d) was to avoid ''the complex 
and If thy nature of the rulemaking proceedii^ that could be reauired under the 
FHSA 47 F.R 14369 Although the 5th Circuit invalidated the Ckmimiseion s 
attempt to avoid the maspe posed by the FUSA,^ the case demonstrates the usekss- 
ness 4if a statutory procedure that is shunned even by the only agency responsible 
for its enforcement 

Finally, the Section 30(d) transfer provision is wholly inadequate to remedy the 
defiiienciett of the WA, FHSA and PPPA. By requiring the Commission to transfer 
the regtiiation of a risk of injury from one act to the CPSA only after a time-con- 
summg rulemaking hearing. Section '^d) precludes the necessary speed of a notice 
iind recall procedure. 

Further, Six-tion *MHd) confusii^ly refers to the traru^fer of the regulati<Mi of "a 
risk (if injury." Arguably, the Cmnmission might interpret this Section to authorize 
tt to transfer to regulation under Section 15 any product creating a sub^ntial risk 
of injury within tlie intoning of tha^ section. In fact« however, the Commission ap- 
pears to have interp'-eted Section 30(d) much more narrowly by making transfers 
under the section on a product-by-product basis. It is unclear whether the Commis- 
sion's limited use of Section *VHq) is a choice it has made <mi the b^is of statutory 
construction or policy. But, until Section 30(dl is broadened through clarifj^ing legm- 
i at ion or the Commwssion changes its narrow interpretation or policy, this transfer 
authority faib to provide a means for effective ni^ice and recall of all products 
polling a substantial risk of harm 



^ To our knuwiedgt*. the CommmHHHi hm only invoked the immineot hazard cUusr once Thm 
wf«f If) 1974, whff} tlie mAice and ivcail pfiivuHon was sub^antiatly difTerent 

^.Stn* ikiif S*m(h InsulaitoH, ei al v tfmt^i Sintett iumaumer Pmduti Saffty C^mmmutn. 701 
F2d n3T<.9thCir l^i) 



39 

mdoommknuations: juumkn tbs soon or a mo and AnE> a ^uoicial revikw 

PROVtBKXN 

Qmsuroers Unkm strangly uiies the Committae to extmd the CPSA noCke and 
recall mnovkkMi to all prodiK^ ragulslod under the CommBwton's three other stat* 
ut^ The main virtue of the Sectkm 15 aiithmty, a speedty procedure to notify the 
fMibifC o{ a product wkk and to remove tl^ ri^ where ai^mqi»iate, ^ vitally impoi^ 
tant iwBitMaB of the type of |KnodiK;t involved. SidiBtantial harm is sub^antial 
harm, l^ective ocmaumer protectlim ahcmld not depc^ on which of the Ckmsmts- 
fiioa'8 several atetutee governs the product porai^ the harm, 

CoQsumerB Union m supported tnr others in its momnmdatioti to extend the ap^ 
pUcabiUty of the Sectim 15 procedure. The report pmaied for the Administrative 
Conference of the United Spates cmctudes that the CPSC sLouM have opedfk au- 
thm^ to seek noike and recall actanis un^ the FWA, FFA and IWA through a 
procedure tike that <rf Sectkm 15 of tte CPSA. The CkmferaiGe's Qmmiitlee cmCW 
emn^tal Processea, nrilowing publk imtice and oommmt, hm ako enibmed this 



Union additionally recommmds that the ImU be amended to include a 
judicial review n^^ ^^J^^ ^ rfnotfce airf recall ordere. IWnUy, 

oetther the FHSA nor the CPSA CMtaina an exfdictt review provkmi. Cbmiequent* 
ly, the Adminktrative Procedure Act wouU apply, pmnittii^ two levels of review 
m both the federal district court and the court <M appeals. 

Most agmcy action is only subifBct to direct revfew in the courts of aimeal. In Sec^ 
tion 15 notice and recall rituatioi^ two levris irf judicial review » totally unneces- 
sary because a full acfantn^rative hearing is condtu^ by the i^pency bdore any 
notice or recall order Is issued. The procedure can only delay the eventual m^ice cmt 
recall, thereby oounterscttiur thdr effectiveness for omumer pn^ection purposea 
In omcuskm, Onmuneni Unim af^mciates the efforts erf* the sponsor of S. 2650 to 
provide faster protection of children from injury thnni^ expedited procedures. We 
bel^ve that other ccmsumer products that pose a muistantial rwk to the public 
should also be sub||ect to the Section 15 notke and recall |Mrocedure. In order to fur- 
ther expedite this process* mly the usual circuit court appeal should be available to 
a party sub^ to a notice or recall cwtler. A simple legmlative amemiroent would 
achieve these results. 

Senator Kaoten. Michelle, thank you very much. 

Mark, earlier today— or David also, but why do you not start, 
Mark. Earlier today Terry Scanlon expressed the view ^ut the al- 
location of— well, and Aaron Locker also— the allocation of re- 
sources and activities between recalls and rulemaking. 

Do you want to just briefly comment, both of you, on whether 
this rulemaking process as we worked it through in the 1981 bill is 
in fact working, or are they responding— are they relying too much 
on just flat-out recalls? What is your evaluation of that issue? 

Mr. SiLBERG^. Well, the 1981 amendments, quite frankly. Sena- 
tor, made it much more difficult to develop a product standard. It 
asked the Conmiission flrst to look at voluntary standards. It pro- 
hibits them from settii^ a rule where there is an ''adequate'' vol- 
untary standard in eflect. It leav^ open the question of what hap- 
pens when a voluntary standard is in the works. 

It does to some extent encourage the Commiwion to proceed to 
determine questions of what is— what presents— a sutetantial risk 
of injury by recall, because it mak» rulemaking more difficult. But 
that is no rea£K>n for the Ck>mmission's not recalling something that 
in fact meets the statutory standard if it is on the market and does 
present that risk. 

I understand Commissioner Scanlon's point I agree that the 
Commission, where it has the option of taking a look at a product 
that is a persistent injury problem in the marketplace and setting 
a standard for it, then the Commission should not sit back and de- 
liberately say, "What we are going to do, since we do nc^ want to 



ERIC 



40 

engage in rulenniaking, is simply recall products every time we find 
this problem occurring in the marketplace. And we know that will 
happen over and over again." 

They should proceed down the road to rulemaking. But it also 
has to reach the conclusion that rulemaking is possible under the 
very difTicuIt 1981 amendments; and also at the same ti.ne contin- 
ue to recall those products that present that problem while the 
rulemaking is in process. 

1 would be very happy to see the Commission start rulemakmg 
proceedings involving, let us say, the three most frequently re- 
called categories of product or for specific most common defects for 
which those products are most frequently recalled, assuming that 
of course in particular someone can identify a potential remedy for 
the particular defects; that is, a performance standard is feasible, 
or if not then a des^pi standard is feasible. 

I do not see the Commiasion doing that, and it is no alternative 
to the Commission's doing that if indeed it intends to focus on rule- 
making prospectively in order to cut down on the number of recalls 
by making rules that tell manufacturers how safe a product has to 
be. 

i do not have any Objection to rulemaking, but it is no answer, in 
the absence of the Commission's undertaking rulemaking, to say, 
"Well, we should not use these recalls and the recall process when 
we find the product in the marketplace presenting risks the statute 
does not allow." . 

Senator Kastkn. I^vid, would you like to comment brieny on 
this question? 

Mr. Greenberg. I basically share Mark s view and his comments. 
Rulemaking is forward-looking. Recall authority is backward-look- 
ing and immediate. I think they are different processes. They both 
have their appropriate roles. 

It seems to me also that if you look at the broad sweep of agency 
work, both CPSC and other independent bodies, you see that rule- 
making tends to have— tends to elicit a different response from in- 
dustry members during different political times, during different 
times of leadership of the resjwctive bodies. 

So I am not sure that we are arguing as much about the regula- 
tory process as we are who is in control of it and what they are 

doing. , , ^. 

Senator Kasten. I thank you very much. I appreciate vour testi- 
mony, as well as the point that Mr. Locker and Mr. Scanlon raised. 
I think as we work in the oversight of the Consumer Product 
Safety Commission we ought to take into consideration some of the 
comments, Michelle, that you make in terms of expediting this 
proc<«s, but also look at this rulemaking versus recall. 

It is almtKt a paradox that the efforts that were made in 1981 
could be leading in fact to more recalls, when in fact what we were 
trying to do in- 1981 was to develop a rulemaking process that 
would be easier to work through, therefore prevent the kinds of 
drastic adversary proceedings like recalls. ^ , . 

But we will work, we will continue to work through this. We ap- 
preciate very much the testimony of the three of you and also 
thank you for your support. Maybe we ought to make a grabbag or 
something like that and everybody put the title of this bill into it 



ERIC 



45 



41 



and we will pick one out and we will decide what we really want to 
name it. 

But we will see. And I am hopeful that we will be able to act on 
this l^islation as early as next week* Tuesday, if we are able to 
stay on schedule. 

I thank you very much and I thank all of the witnesses today. I 
think this has been a very worthwhile hearing. 

The committee is adjourned. 

[Whereupon, at 11:55 a.m., the subcommittee was adjourned.] 



37-679 0 - 84 -6 



46 



TOY SAFETY ACT 



MONDAY, JULY 2, im 

U-S. Senate, 

committke on commerce, science, and transportation, 

Subcommittee on the Consumer, 

Milwaukee, WI. 

The committee met, pursuant to notice, at 9:10 a.m„ at the 
Teaching Center, 4854 South 27th Street, Hon. Bob Kasten (chair- 
man of the suboimmittee) preskiing* 

OPENING STATEMENT BY SENATOR KASTEN 

Senator Kaotsn. The hearing will come to order. I'm pleased to 
open today's hearing on my legislation which would expedite the 
recall of unsafe toys or other article intended for use by children* 
Under current law the Consumer Product Safety Commission may 
order the recall of those products only after engaging in a long and 
a cumbersome procedure that in some cases can take years to com- 
plete. We ve got examples here today to prove it 

Basically because or a lerislative quirk, it's often easier for the 
Consumer Product Safety Commission to recall products intended 
for adult use that present substantial risk of iiuury than it is for 
the agency to recall ha^urcfous toys and other children's articles* It 
doesn t seem to make sense, but the fact is that today it's emier in 
the United States of America to recall a tester or an iron or any 
product that is used by adults than it is to recall a simple chil- 
dren's toy like this one which has in fact contributed to ii\|ury and 
death. 

WeVe got^ this nwming, a number of other examples of toys and 
children's products that have in fact been shown to be dai^rous. 
Yet we have been unable to get them off the market in an expedi- 
tious manner. There's absolutely no reason in my opinion why it 
should take longer to recall childr n's toys and articles than it does 
to recall other consumer products. In fact, it's the children's prod- 
ucts that ought to be removed from the marketplace first because 
children are pa^icularly vulnerable and are often unable to pro- 
tect themselveis. Toys and children's article that present a suh- 
stantial risk of ii^jury should be removed from the marketplace as 
quickly as possible* 

The legislation before us, S. 2650, the Toy Safety Act, would 
amend the Federal Hazardous Substances A^t to allow the Con- 
cumer Product Safety Commission to order the immediate recall of 
toys and cliiidren'? ortjcJej^ that contain a defect which creates a 
substantial risk of injury. The Consumer Product Safety Commis- 
sion will no longer be required to issue a final rule banning a haz- 

(431 



ERIC 



44 



ERIC 



ardous toy or article before it may begin a recall procedure. Nor 
will the Consumer Product Safpty Commission be required to com- 
plete a rulemaking to transfer its r^ulatory functions from one 
act to another. 

These procedures, both the transfer and the rulemaking proce- 
dures, are lengthy, unduly cumbersome and serve to unnecessarily 
delay the removal of unsafe toys and other children's articles from 
the market. With this l^islation the consumers' interest will be 
better protected and the children's environment will be better 
served. 

First of all, I'd like to welcome all of you here today and particu- 
larly to welcome the witnesses who will be ofiering a variety of 
perspectives on the subject of children's safety. We're going to be 
hearing from representatives of the Wisconsin State L^islature, 
the Consumer Federation of America, the Concerned Consumers 
League, the Wisconsin Manufacturing Association, and WITI Chan- 
nel 6. We'll also be hearing from Zayre Corp., Milwaukee Day Care 
Center, a speech pathologist, and from the American Academy of 
Pediatrics and the Milwaukee Children's Hospital. 

We're particularly pleased to have with us today the Chairman 
of the Consumer Product Safety Commission, Nancy Steorts. who 
has been kind enough to mme from Washington, DC, to discuss the 
Consumer Product Safety Commission's activiti^ in the area of 
children's safety and also to present their views on this l^fislation. 

Nancy, we'll b^n with you. 

We'd like to present Nancy Harvey Steorts, Chairman of the 
Consumer Pr^uct Safety Commission, Washington, DC. 

STATEMENT OF HON. NANCY HARVEY STEORTS. CHAIRMAN, 
CONSUMER PRODlJtrr SAFETY COMMISSION 

Ms. Stkorts. Thank you very much. Senator Kasten. Its my 
pleasure to be here in Milwaukee, and I'm particularly pleased to 
be here with you. I think that this move on your part to enact a 
Toy Safety Act in 1984 is commendable, and I appreciate it. 

First Id like to take this opportunity to commend Senator 
Kasten for having the foresight to introduce the Toy Safety Act of 
11)84. I believe that it shows a sensitivity to the needs of the Ameri- 
can consumer. 

This bill will hopefully correct a legislative quirk that has for 10 
years hampered the ability of the C>>nsumer Product Safety Com- 
mission to work expeditiously to protect the consumers of America, 
mo^t particularly the children of the consumers of America. 

Second, I would like to call attention to what I believe to be the 
most important aspect of this bill; namely, the time factor. This bill 
will allow the (>)mmission to move swiftly. This swiftness is b^t 
understood in comparative terms. It has b^n pointed out that it is 
often easier for the Consumer Product Safety Commission to recall 
products intended for adult use than to recall hazardous toys and 
childrenV articles due to the weaknesses of the Federal Hazardous 
Substances Act. 

Let us look again at the example of squeeze toys. Although mc«t 
manufacturers were cooperative, two firms were not. This meant 



48 



45 



that it took from lUHI to 1»84 for the American marketplace to be 
free of a substantial product hazard. 

In contrast, manufacturers are often far more willing to take 
prompt corrective action for an adult product bc^rause they know 
that the Commi^ion does not need to go through the protracted 
30(d) proceedings, but instead can rapidly issue an administrative 
complaint to compel a recall or other appropriate corrective action. 

A case in point is the Commission's recent voluntary recall on an 
electric space heater. This heater had been involved in six fires, in- 
cluding one in which an 18-month-cld baby perished. The Con- 
sumer Product Safety Commission contacted the manufacturer 
about this problem in February of 1984 and a recall was announced 
in April of 1984. This means that it took only 2 months to get the 
adult product off the market while it took 2 years to do the same 
with a child's toy. 

I am pieased that in the future the chances for such an intoler- 
able and unconscionable delay will now be eliminated. 

Third and lastly, while weVe talking about the safety of chil- 
dren's products, I would also emphasize my belief that much more 
needs to be done in a^^e labeling. Age labeling is a key wav that 
industry can help make toys safer for the individual child. I would 
like to see on every tov, particularly on thc^ intended for children 
f; years of age and under, appropriate age recommendations and an 
explanation of the siifety reasons behind the recommendation. In 
other words, once again, better information for the consumer. 

1 am confident that the combination of better age labeling for 
toys and the ability to recall these himirdous children's products 
quickly will go far in reducing the tragic toll of toy related injuries 
Although toys are safer on the whole, in 1982 there were still 



Thank you ver> much. Senator Hasten, for the work you have 
d(ine to bring to fruition the Toy Safety Act of 19S4. 

Senator Kastkn. Nancy, we thank you verv much lx*t nie. first 
of all, ask are you sfH^aking on your personal Whalf or are >ou also 
s(K*aking on behalf of the administration when you voice your hUf> 
port of our h»gislation? 

M.^ Stfokt^?, I am s|H*aking on bt*half of the ( onsumer FrcKku t 
Salfty Commission and Tni also speaking on my {lersonal behalf 
The Consumer PnKluet Safety ('ommission supports this legisla- 
tion, and I was also very pleas^Hl to be at your hearing in Washing 
ton. S<»niitnr Kasten, when Virginia Knauer's deputy. Hob St< aves. 
sj>oke and I was very pleastni to see that you had the support of 
V^irginia Knauer, Special Assistant to the President and Director of 
the Offict* of C^^jnsumcr Affairs. We feel that this is outstanding leg- 
islation and the Consumer Product Safely Commission extols that 
Senator Kastfn. Nancy, I know that you have been active in pro- 
moting children's siifety and have bi^n working closc*ly v/ith the Iti 
dustry trying to develop a working relationship rather than an ad- 
vers:irial one ('ould you briefly describe* a couple of the kinds of 
things that youVe been doing? 

Ms. StKokts. Y<*s; first let me give you an example of a comfKmy 
that had a problem and rectifitnl it immediately, and I'd like to 
refer to the recent recall of that little playmobiie person of McDon- 
ald's 




ply too high. 




49 



46 



One consumer in Rochester. NY. reported to us that she felt that 
a small playmobile promotional toy did not meet our tests for a 
small part for children under II She called the Consumer Product 
Safety Commission. Our investigators took a look at it. We were in 
contact with McDonald^s immediately. 

McDonald s called me at home, personally, 2 days later and said 
whatever the problem was that they would correct it. They said 
they did not need a product safety problem. McEtonald's voluntarily 
recalled within about 4 days 30 million of those little toys. That is 
the epitome of corporate responsibility. 

A second example I would like to relate to you is the wonderful 
cooperation we've had from the Toy Manufacturers of America. 
Since 1 have been chairman, we have joined in a cooperative effort 
with them at holiday safety time talking about how to buy safe 
toys, and they have been very cooperative. I think that now 
through this legislation we will find that the toy manufacturers 
will coopt*rate with us even more, including a few of the companies 
that have not been as cooperative as they should have been. 

Senator Kasten. I might say at this point that the reason weVe 
having these* hearings here in Wisconsin is in order to increase 
public awareness and also frankly to get as much support behind 
this legislation jis we can. I believe its very important that we 
enact this legislation before we get into the next Christmas buying 
season That means we've got to pass it in the House and Senate in 
the period we've got left in early August, before we go back for the 
Republican Convention in Dallas. 

That will allow President Reagan time to sign the legislation into 
law and give the (\)nsumer Prciduct Safety (>)mmission, and other 
pcHifile tn the administration working on this issue a chance to com- 
plete their tasks before the (Christmas season. At that time, we'll be 
ready to k<> forward. 

rd also likr at this time to just say what we will do here today. 
Chairman StcH)rts and I will show several exampk*s of why this leg- 
islation is necessary and demonstrate for you the problems that 
we've got We have had deaths and injury occur with literally 
every one oi the pnnlucts you see U*fore you. We'll just go through 
now and (*xp!ain very quickly to all of you what some of the prob- 
lems have lHH*n. 

Ikfore we do that, I'd like to thank the people at the Teaching 
(Vnler hc^re wt^u have be^*n good enough to allow us to usi' their 
facilities A special thanks should go to Jo KIlyn Kuhs, but the 
whole ^ruup hah in^it wonderful We thank them very, very much. 
We re particularly pleased to be here at the Teaching CVnter Ik-- 
eauH' they have such a U^rrific facility. We saw a group of children 
on theif way out for a field trip just iH'fore we got here, and there 
are al.so some children here with us today. 

Nanev, why don't we start with this example right here, and 
we'll just demonstrate one or two. 

Ms. Stkoki^. Senator Kasten, I'd also like to my that 1 do have 
the official statement of the (Vinsumer Product Safety Commission 
which is available. But I thought in the essi^nce of time I would not 
read it 



47 

Senator Kasten. This is a mesh-^ided playpen, and it's meant to 
be used like this. What happens is that as Nancy just demonstrate 
ed^rpeople sometimes let the side drop. 

Thev get it locked like it was ju^ locked, but unfortunately Uiey 
don't l^ve it locked, and the tihtmg drops. The child then falls into 
this area and is sufHcated. We have seen 11 deaths due to this 
mesh^ided pla^n, but recall proceedings have already taken IVz 
years and this vasue is still in litkation. 

Ms. Freese. Who is the maker? 

Senator Kasten. Tve got ttiat information in another place. Ym 
sorry. 

Ms. Steorts. There are many different makers of these* 
Senator Kasten. Here is an(^er example. This is a headboard 
for a crib, and as you can see the crib was made so that it is possi- 
ble for children to fall and to get raught or strangled. In this exam- 
ple, there were seven deaths prior to the initial recall, two in 198Ji 
Once more, it took a long time for us to get this off the market 
because of the way the current law reads. 

We talked before about these different kinds of squeeze toys. 
WeVe had four deaths and five iE\]uries from squeeze toys of this 
kind- Yet, it's taken a period of 1 year or IVi year to b^n the 
recall. 

This is an example of a good squeeze toy because it can't be swal- 
lowed. It's fat enough and big enough so that a child can't get this 
into its mouth. This is the kind of change that we're trying to work 
toward. 

The last example that we can just briefly show you has to do 
with crib hardware. Fll let you demonstrate that, Nancy. 

Ms. Steorts. This is the one we have had the most difTtcultv 
with. With crib hardware, people assume a crib is going to be all 
right. The screws, the bolts, the brackets, one assumes that those 
are all going to be tight and that a crib is a safe haven for a child, 
but many times it is not. If you take a child who is sleeping in a 
crib like this and one of these brackets over here should disengage, 
like this, that child while sleeping in the night, when the child 
moves can literally fall right through these cracks. We have had 
S4>veral deaths from just such an incident. 

We have had an absolutely terrible time with the manufacturers 
to get them to understand that this pn^lem must be corrected. So 
what we had to do was go through the cumbersome process of 
transferring iurisdiction over the risk of injury from the Hazardous 
Substances Act to the Consumer Product Safety Act which took 
just an unbelievable amount of time, Senator Kasten. 

Your legislation now will correct this so that we would be able to 
do an automatic recall of this product so that we wouldn't have to 
go through this tremendous amount of time transferring from one 
act to another which is confusing to the consumer and absolutely 
does nothing for the safety of the child. So we really thank you for 
this l^isiation and we hope it gets enacted very quickly. 

Senator Kastkn. Thank you. 

Vd like to say just one more thing before we go on to the first 
panel. In this last example, there have been 46 Consumer Product 
safety Commiffiion indei^ investigations o( this crib since 1980. 
Nineteen children have died. I think that what we*re suggesting 



51 



48 



here is that we've got an opportunity to make a real difference if 
we can improve the recall system. 
[The statement foUows:| 

Statement i^r Hon Nancy Hakvey Stbohts, Chairman, Consumer Product 

Safisty Commwsion 

Mr Chairman, it is indeed a pleasure for the C/onsumer Product Safetv C/<m.mis- 
sion to appear before you today to dtscuas S. 2650. tt^ Toy Safety Act <rf l9M and to 
review with you the lefftalative twia^ that the bill m detugned to remedy. 

Quite Dimply, children do not today have tlw same protection, imder the law, 
ai^atnst products intended for them and found to be hazanioua, m adulta have 
against most other utM»fe products. Ircmically, toys and children's prodiKts were ac^ 
corded a special status by being regulated Tirst as a risk (mered in the Federal Haz- 
ardous SuMances Act (FHSA> beUM thw ag^nry was created. But, they now are 
i»ub>ect to a more cumbersome. imprm:tkal recall process because they are covered 
by an Act which does nc^ have a omprriiensive recall provision Today, because of 
this second-class sUtus for Usys and children's products, it is easier for CPSC to 
recall products intemfed for Mults and which present sub^ntial risks of injury, 
than it b to recall hazanfanis toys that are unregulated 

Mr (liairman. the bills which ytw and Congressman Waxman anncHinced May 9, 
and the Senate version which you have before you today, would rectify that imbal- 
ance of protection 

Under current terms of iiw Federal Hajsardous Substances Act. the only provision 
for n«call of a toy or children s product is after the product becomes a "banned hax- 
ardouH substance ' (k*nerally. this requires the agency to publish a rule banning or 
regulaiing the pniduct unless the Commis»i<Mi takes the unusual step of first declar 
.fiM the product un imminent hazard, at which time the recall remedy is then avail- 
able. The rult muking pnicess often requires two or three years. The most expedi- 
tious prmx'sis available now for recalling an unsafe toy or children's product that is 
not covered by an existing FHSA regulation, or is not an imminent hazard, is by 
transferrmg regulation of the risk of injury under section 3(Kdl of the Consumer 
rrmiuci Safetv Act (CFSAi. This regulatory transfer from FHSA to CPSA is after 
notuv and public aimment and a finding that it is in the public intend to do so 
H(»wt*ver. thiN process usually requint* at letwt six months to complete, after which 
,t rtvail pr<K-e<Nling under section IH of the Cl^A can be started In the meantime, a 
to> or children's product considt^red to be hazardous could remain in the market* 
phK«- Yet. th*» recall of most products intended for use by adults does not require 
fhih lengthv transfer pnnedure 

Furtutial'i-lv. Mr Chairman, our negotiations with »ome industries have met with 
t M^jx-ntfion and i|U.cN ret*p<ms«' when evidence of Hultwfantial rthks of injury from 
th« *r p^<»auit^ is at hand Some have betn more difficult to persuadcv Some have 
us^'d our pr(K*»'duraI procew to delay as long m possible the recall of a hazardous 
pnKlucr 

A few i xitniph-.H of recalli^ under various tin umhtant^-h are as folHJWN 

Sturr<-<1 fnys With Strings In October and Novt-mlier 11^70. the ntaff receivi«d 
rf-p »r(^ o! (WO rafiKuhitiori deaths asso< iaU-d with the products The firm was con 
t:u i^'d and a ctirrettive actum plan wiis negotiated during December 1H79 and Janu- 
ary r.tHir H(iwev<-r. the rfvall effectiveness. etip^-ciaHy amoni? consumers, was very 
N€i in April-May additional corrt^ctive action waft rt^|Ue«ted The compimy 

r# f i;M-<i In Juni* V^xiK the staff nwmmended a section 'Mkdi propusiil. which w^is 
piibhsheKi NovcinlKT 17. In order to vX>nform the :MHd> rule to the Htalute. as 

aniende<l in AuKU5*t and in ord* r to imlu<le additi<mal products with the same 

n^kM iii HMurv. the :UHdi rule was repropofw^l fJt-cember 4. 1981. and « final -^^i^ 
rxiU' wii^ puhlishiHj Manh i7, Wfh'J. On April 2i>. 1*^2, the staff f«rwardt-d a bnt-nng 
pui U^i^v In ihr (\»nmus?^itm with a complaint rpc<jmmendation Th<» Commission* on 
Uuw VJ^2, authorized the is^suanct- of a complaint At that point, the ctmipany 
a^ri*<Hl to thf corr*vtive action recommendation and the (Vmimisston appn»vi*d their 
rfhpoiiH*' Juiif 24. . . 

rj» Spie*'Z*- Toys In VJXl and VJ^2. our i^taff learned of two •juffocation deaths 
involving M|uef/e toys that had handles with bulbout^ end** Th«* impc^rt^r of the toys 
invDlvi'd agri^'d to recall ihem We collected and examined K^O squeeze toys fnim 
s**»#Tal manufactiirerN. among which 21 were identified as being «ub<tantiaHy naz 
ardous Mtist o! th<- firniH an- curn>ntly conduct'nj? voluntary recalls in cuoperatiufi 
With the i'omu la^ion, \mi twi» firms n*fused to recall their products A profKmed 
.tOidt rule yi/iis published January 4. I'JX^l and a final rule was published January 5. 



4S 



1»J4. Sliortly brfotie the rule became final, both firron s^preed to ittidenake correc- 
tive action 

m Mrjh^Skted Crib« and Playpen j-- After teanunjf of the <featl» of II yoaxig chil- 
dren in mt\4H»ded cribs itnd frtayjpens when the md^ had been left down, 
issueH a ccmiilaiat in the foil of 19S» agsdmti aU tsuuii^*! urera them itema seek- 
uig extei^ve publk naUae and a idcall under ftocHsm 15 of the CPSA. Seven of the 
dejith€ occurred between 1^1 and ISSS. Tkiv snutt^ is eurmtly in litigation, with 
the manufacturers oonteedng the staft'a pomtiim that it was in the public intere^ to 
r»9CBU :uid provide ernensive puUk notice (d the Hasard int^ved. TrmI is i»t for 
August 1984. The 30(dl rufe ws^ pnqioeed in thb case March 9, 1^ and MKued in 
(inalforA July 27, 19hS. 

(4) EndoBures— Between I99b and 1982, the staff rs>jeived three mpotta <^ deetl» 
and erne repc^ of brain damage catmd bv neck ontrapinent in endosuroB— expanda- 
ble cjKiindrical wood'?n radomires intend to ocmfine chtMmt. On June I&, 
the Oommffisioii published a profiosed rule under soctkm 90(41 A Hnai '«fO(dl rule was 
pubirahed RlarrJi (i, 1^. The staff has indicated that it miqr be Mcesury to seek 
cotnputeory corrective actkm under sectkm IS of the CP9A. 

(6) Crib Headboards— Two moddb of cribe irAr^ufactured by odu firm weie in- 
volved in seven cfeatha The Hrm agreed to reca;i ti^ crOis ami an etenstve notifica- 
tion effort was conducted betwoM 1978^. After ImmiQff of two deaths during 
19^, the firm agrsed to another effort to notify the piJrftc about the hassrd ami the 
recall. If it h^ been t^ceswry to go through the ^d) procedures, the time to initi- 
ate both corrective actims by the firm and to mitify the imUic would have heen 
increased imbBtt^ntially. 

(6) Indoor Gym Hoime— This ceae is urailar to the oib headboard case in that 
the firm agreed to a second recall and notificatlm effort. Two d^thi« led to the ini- 
tial recall in 1980. The second eff(^ was the remit of a third d^tli in 19HZ. Thefte 
corrective actions and public notification e/forta would have been substantially de- 
layed if it had been necessary to fcdlow tL^ 30(d) procedures. In <^r words, if the 
imtustr> had not been cooperative, our hamk would have been tied for several 
months. * 

The Toy Safety Act ot 19i*4, if passed, wtmld expedite the corrective action on all 
such cases, except those where the mdttt^ry involved respmMls readily and quirkly. 
The bill wouU allow CPSC to use the same procedures to recall a hasardous toy 
that now can be used tc recall other hasardoua consumer products. 

The ^trocedure for recalUng nwst comkuner products, as you kmiw, is reiati\ely 
numpfe Under author ty of section IS of CPSA, the Commia^Qa may, after a public 
hearing, require the recall of consumer products that either (1) fail to comply with a 
consumer orcxluct safety rule, and so crrate a substantial risk of iiyury to the 
public, or (2^ contain a <tefect which crwtes a substantial risk erf* iiuury to the public. 
The section 15 recall authority had been one of <nir most effective tools in providing 
prelection from Kihrtantial risks of ii^ry in the nuurketpiace. Regulation and 
At^ftndards, both voluntary and Cooimimon mandated* are eflfipctive for subsequent 
production But a recall or corrective action program is often the only effective way 
to reach those defecting products already in circulation or in the possession of con- 
sumenB. 

In reviewing some of the legislative background winch left toys and children's 
productB outj^kie of the normal realm oi the CPSA. it &eems that thie was an unin- 
tended oversight brought on by an ^rlier ethrt to give speciai protection for toys. 
The effect has been a cumbersome system which can take months— and. in some 
cases, years^-to recall a haxardow f^oduct cfastined for use by children. 

Mr. Chairman, no consumer is more vulnerafHe to the hasardb i^-odmt cfefects 
than children. The Consumer Product Saffe;y Commission has loi^ recogniaed this 
vulnerability and h^ had a deep interest in the special fidid of toy safety For ex- 
ample, during the 1^ three years, thte ag;nicy hm had a Holiilay Toy Safety pro* 
gram before Christmas to promote safe iHijrinft |vractioes and to caution adults about 
potential hazardi^ in the children's market. Inis imigram has been held in coopera- 
tion with the Toy Manufacturers of An^frica and has been very sucoesirful in reach- 
ing the buying public at a time when many toys are selected fur cltiktren. 

Age labelir»r m toys is a venr important way that manufacturers can make toys 
safer for chiloren. A number of manufacturers and impc^ters are already provMing 
appropriate age labelii^ for their toys, particularly those intemM for duMren six 
years old and under. The Commiasim hopeB that toy manufacturers and importers 
will join tn providiM thm important tnfmnatim to prevent unneoeaaary accidents. 

Rf^ardlea^ of such worthy program, however, prcMema do sometinwis arise in 
children 'ft i^^ucta. When we at CPSC leam of acodenta frcmt these products, it is 
our job to mvestigate and, when neceffiary, to act. A nu^or difficulty we have faced 



ERIC 




50 



ERIC 



in !*ome sttualioni^ involving toys and children V product** hu» been the complex and 
cumbersome process for elTcctirtg rentlls or corwrtive action. 

IViuys in such matters hardly seem justified, especially when considering the 
type of corwumers who are at risk. It is a source of great satisfaction to this Com- 
mission that the issue of toy sofHy is one which enk>ys bni^dmiblic support This 
legislation should co far in enhancing one of the effective CPSC tools used in our 
toy s:jifHy i^ponsibilities and should permit us to utilize more effectively our legal 
resources currently employed in these 'Md) proa^edings. 

We support the legislation proposed b> you and Congreswrnan Waxman. 

Thank you. Mr C'hainnan, and we will be pleased to respond to any questions. 

Senator Kasten. Now. Vd like to proceed to our hearing. It's or- 
ganized into three panels this morning, and what Vd like now is to 
ask all the members of panel. No. 1. to come forward together: Al 
Luzi. Nancy Grundle. Patricia Rouleau, and Camille Haney. 

We will begin. I'd like to ask that you please keep your state- 
ments to roughly 5 minutes or a little bit less. However, your 
entire statement will bfKX)me a part of the ofTicial hearing record. 
We'll try to move through the whole panel and just address one or 
two questions to the panel as a group. 

First is Mr. Al luzi, who is the former president of the Con- 
sumer Federation of America, and past executive director of the 
Concerned Consumers League, Milwaukee. WI. 

Mr Al Luzi. 

STATE.MKNT 0¥ AIJ>KN !^ I.IJZI. FORMER EXECl^TIVE DIRECTOR. 
CON( ERNED CONSUMERS I.EACiUE 

Mr. Luzi. Thank you. Good morning. Mr. Chairman, and thank 
you for the opportunity to appear before you and the subcommit- 
tee. My name as you said is Al Luzi. Vm the past president of Con- 
sumer Federation of America and past executive director of the 
Concerned Consumers League. I'm here appearing today on behalf 
of the league in support of S. 2650 and to suggest amendmenU to 
the current bill. 

During the past several years both the league and CFA have en- 
joyed goi>d working relatioiiships with the Commission. CFA has 
worked closely with the Cximmission in r^ard to the setting of var- 
ious standards, the provision of community based programming, 
and as well as advocating for the reauthorization of the Commis- 
sion's budgets. 

The league, which is a CFA State and local member, has also 
concentrated on the above-cited issues as well as earning a de- 
s<*rved reputation in the area of product safety. Both the Waukesha 
Safety Commission and the Ck)nsumer Product Siifety Commission 
have given the league commendations for our work. 

The league also has provided direct community bise sc^rvice in 
conjunction with the Commi.ssion through toy safety workshops 
and prescription cap closure* surveys. 

Currently the league is coordinating the passenger restraint net- 
work project. The project is comprised of over hospital, clinics, 
consumers, and governmental units concerncnl with the safety and 
seat belt issues. 

We would also like* to commend the Comn ission on the recent 
|x>sition of not allowing the exfKirt of banned or hazxirdous products 
from the United States. Thanks to your efforts 'made in America" 
will continue to mean the best in product qualities. 



54 



51 

With respect to S. 2650, the act seeks revisions in the Federal 
Hazardous Substances Act which will allow the Consumer Product 
Safety Commission to expedite the recall of dangerous toys and 
other articles intended for use by children. 

Currently, as you know, the Commission can recall toys and 
other articles in the following two ways. First, under the Hazard- 
ous Substances Act, the Commission must finalize a rule banning 
the toy or the article* Tliis can take, as has already been pointed 
out, 2 to 3 years. 

Second, the Commission could transfer its r^ulatory function of 
recalling products from the FHSA to Consumer Product S^ety 
Commission Act. This proems may take anywhere from 4 to 11 
months. In both instances the toy or the article will remain on the 
market during the period cited above. 

If the bill is missed, the Toy Safety Act will eliminate the long 
delays in the FHSA recall product procera and provide a frame- 
work for the actual lec^ of toys or hazardous articles by the Com- 
mission. The act appears to be well written and needed m order to 
assist the Commission in protecting our Nation's children. 

Both the league and the Conmimer Federation of America will be 
working with you. Senator Hasten, in support of S. 2650, which we 
hope would become law by mid-August. 

With regard to suggested changes in S. 2650, three of our sug- 
gested changes are in language only that we believe does not 
change the intent of the bifl. under the act ample opportunity is 

{provided by the Conmiission for voluntary compliance, and we be- 
ieve that that probablv is the heat place to start. 

In relationship to the draft that I have, and this is the staff 
working draft dated June 13, 1984, our Hrst sugg^rited change in 
verbage is on page 3, line 16, and it just m^^relv involves changing 
the word "may'' to "will'' after the cmnma. Trie Commi^ion will 
onfer the manufacturer, distributor or dealer to take whichever of 
the following actions the person to whom the order is directed 
elects, and then the listing of the orders. 

The serond change wmild occur on page 4, line 9, once again 
eliminating the word "may," inserting the word "would," Reading 
the line as it starts, "An order under this pare^praph would also re- 
quire the person to whom it applies to submit a plan," and then on. 

The second change on that page, p^e 4, line 18, would also 
simply involve the deletion of the word 'Tnay" and the insertion of 
"would." The sentence beginning, "An order under this paragraph 
would prohibit the person to whom it applies from manufacturing 
for sale." Again basically the suggestions there would just simply 
tighten up the verlwge to encour^e voluntaiy compliance. 

Our next suggested change is in addition to the act and would 
address the potential iwue uf the export of a product within the 
act g authority. Along with prohibiting the import of toys or arti- 
cles inti the United States and U^. custom territori^, the export 
of such articles should be disallowed also. 

This change could be easily a<xx>mplished by adding the lan- 
guage, and now weVe talking the bottom of page 4 on that draft, 
adding to line 25 aft^er the period "this shall also appiv to the 
export of the toy or article for foreign consumption outside of the 
continental United States or U.S. customs territories." This we be- 



: 55 



Heve would add a consistent administrative overtone to the Com- 
mission's decision to uphold the decision on the export of banned or 
hazardous products which was adopted and reaffirmed earlier this 
month. 

We would also support the suggestion made by witnesses in 
Washington earlier this month to extend the applicability of the 
section 15 procedure to cover all products within the juri^iction of 
the Consumer Product Safety Commission. 

Once again, thank you very much. Chairman, for the opportunity 
to appear and congratulations to the Commission for its position on 
hazardous exports. 

Senator Kasten. AI, thank you very much. 

Next on this panel is Nancy Grundle, the consumer reporter for 
WITI TV Channel 6, Milwaukee. 
Nancy, it's great to have you with us. 

STATEMENT OF NANCY GRUNDLE. CONSUMER REPORTER, WITI, 

TV 

Ms. Grundle. Good morning. Senator. It's nice to be on the other 
side this time. It s a little different I must say, and asking me for 5 
minutes is difficult as my friends and colleagues will tell you. 

First of all, I do commend you and the Consumer Product Safety 
Commission, as a matter of fact, for the diligent efforts in the area 
of toy safety, more importantly protection for our children. 

Vm a consumer reporter. It s my job to inform the public about a 
variety of issues which include the recalls and problems surround- 
ing products that affect our children in the marketplace. Maybe I 
take a special concern because I am the mother of two. Maybe be- 
cause when I look at any child I see the helplessness of that tiny 
person and hope I can somehow protect that child by sending mes- 
sages to the parent or guardian. 

We hear of deaths. We hear of injuries. We h^r of brain dam- 
aged children. All needles situations if only the i^rents and man- 
ufacturers would pay attention to what is safe for those children. 
\Ve hear about these children as the hope and future of America, 
the building blocks of tomorrow. They are, but within that bnmd 
statement appear tho^ little children, those leaders of tomorrow 
who want to enjoy childhood, plain and simple. They want to play 
to their hearts' content, and m the word play" comes the main 
mechanism that can sometimes hurt rather than enhance child- 
hood. That mechanism is toys. 

Psychologists ^y that play is child's work. That is how they 
iearn, develop and many of the toys help in that learning process. 
In the past few years I've seen better alerts to parents, 1 must say, 
in many areas of product safety in the marketplace. There s better 
information in the way of pamphlets, public service announce- 
ments, posters and media coverage, but that only scratehes the sur- 
face unfortunately because while the pester is being hung, another 
death occurs. It seems like a never ending battle. We can't always 
reach everybody. 

It's just as frustrating for myself in the media because the prob- 
lem that I face is that if a problem with p product is not a problem 
in our broadcasting area, I can't report on it so as not to alarm the 



ERIC 




53 

public, yet there could always be tiiat one person out there who 
a>uld have purcharad the product in Uiat other town or village or 
received it as a giift and thus they won't know about it tiiroui^ the 
media. 

We have reported on many issues on the toy ' sae like the indoor 
^m house. Looked good at iiist, constructed ^ durable pl^tic. No 
sharp points and small enough for a child to play with in»de the 
house where supervision by the parmt should be wtsy. Yet three 
deaths were reported, one df a year-c^d «itrapped in tl^ 
ladder, and again plain and simple the h^Kl ^ cau^t 

How many people h^ud my report regardmg this ladder? I don't 
know. Many peqple bought the product. Many people trusted the 
manufacturer and many people Unisted the store where it came 
from, but the product was still on tl^ market and waiting legisla- 
tion to pull it off. 

Then there's a problem with stringed mdiile toys Uiat hang 
above the crib or the Immblebee that we're looking at on the table 
right now. Thex products could strangle a child. Sometime we 
om't prove any iteaths or injuries, yet tl^ remain on the mai&et 

And then there's a prc^lem of choking cm small <rf>jects. I iitdlral- 
ly taped a session in the surs^ry area of one of our main hospitlds, 
Childrens Hospital, especially to get the messc^ out to parent 
and guardians about the dangers of small <Aa^:ts that childrejK.. 
swallow, objects that block the airways. We showed the tools that 
are used by surgeons to dislodge the Objects. We warned ^bout the 
mariiles, the soldiers, the small things that you see hanging on the 
boards, all of these aold in stores even todav. And they get in the 
wrong hands because people don't read the labels or they are 
passed down from sibUng to sibling, to the wrong age. 

And then there are the toy cnests, the keeper of these play 
things. Toy chests that were the cause of 21 deaths and two brain 
damaged children because due to the lack of safety hinges the top 
fell on the child's head. The toy chest stayed on the market. The 
most that I could possibly do was alert the parents and guardians 
and tell them where to get lid supports while these toy chests were 
being sold. I've tried the pamralet route too in comunction with 
the Consumer Product Safety Commissiim, and I had scmie €^ those 
available during the holidays, but during the holidays isn't enough. 
We need year-round protection for our cnildren basically. 

Pledg^ by manufacturers aren't enough. Letting manufacturers 
use their own voluntary standards aren't enough. Relying on infor- 
mation supplied by the manufacturers just isoi't enough. 

And watting 10 years for man<^tory safety measures t>efore a po* 
tential accident happens isn't enough. I see too many reports on 
the toy hazards like the thousands who re<^ived emergem^y room 
treatment in eye-reiated injuries from projectile toys* We c^n't stop 
the hand-menlowns. We can't always see the hidden dangers in the 
toys, but I think that this bill and perhaps an extension of it along 
with publicity all over the place regarding the issue can enhance 
everyone's awareness of toy safety. 

Perhaps we can see this bill passing forward into the area of chil- 
dren's furniture. We've seen busi^ ^ it now, if it isn't there al- 
ready, r^ulations that cover not only cribs, but playpens, dresser 
sets, layette sets, even rockers for children. 



57 



54 



Manufacturers should be better related. There must be some 
way that these toys can be better inspected before it's out of their 
hands, perhaps during the initial design* Many of them do this, but 
still not enough. 

The product liability law should reach out and protect the con- 
sumers and show manufacturers that our childr**n's safety is of 
major concern and that heavy fines will accompany toy defects. 

Stores should better warn parents about product labeling aid 
age preference. For example, prominent notices should be displayc d 
for parents to see the labels. Parents have to be reminded just lib e 
children time and time again. 

Import toys especially shmild be r^ulated before they get into 
the country. Too many times I as a parent and as a reporter ste 
unsafe imported toys on the market in large quantities, not only in 
the m£uor areas, but in the small dime store units that we see, the 
neighborhood dime stores that are around town. 

1 know it*s a lengthy, cumbersome and costly process. There are 
many manufacturers who try. After all, they have hefty lawsuits 
and they have reputations to keep* It s something that's difficult to 
enforce at times. Tve covered conferences r^arding toy safety 
where only a handful of people show up. Tve seen the seat belt law 
over a year old and not enforced enough* Tm tired of seeing the 
long periods of time that it takes for an issue to be passed. 

The fact is that toys are dangerous. They are sharp, small, de- 
tachable, electrical. They are small pellets on stuffed animals, pro- 
jectiles on toy guns, strings on little dancing bumblebees like you 
see over there, and there's chemistry seU that blow up. 

These tragic instances we hear of car. be avoided if only parents, 
manufacturers and store owners realire that toys are definitely se- 
rious business. And I think this bill is finally going to bring that 
about. 

Thank you. 

Senator Kasten. Nancy, we thank you. Hopefully as a result of 
the hearings that we're having here and in Madison, people in Wis- 
consin will be more aware of this issue. Furthermore, as I said 
before, we want to put l^istative, political, and public pressure 
behind this bill so it won't get lost in the legislative shuffle. 

There are many examples of people that have done just what 
youVe asking without legislation. Vm going to introduce a repre- 
sentative of the Zayre Corp., who's been a leader in a number of 
these areas. And as N incy Steorts said, McDonald's reacted in 
about 2 or 3 days. 

At the Washington hearing, we heard interesting testimony from 
Mattel. P(^ibly Doctor Johnson is going to talk about this later, 
but what Mattel decided, was to use a special substance on some of 
the smaller pjirt^ of toys so that they could be found quickly with 
an x-ray or something like that. These kinds of changes are already 
happening and there are a number of comi^nies leading the way. 

I'm pleased now to introduce Pat Rouleau who is the manager of 
Consumer Services and Merchandise Quality Assurance, Trade Pro- 
lection and Private Label of the Zayre C^rp., in Framingham, MA. 

Pat, it s good to have you with us. 



55 

STATEMENT OF PATRICIA ROULEAU, MANAGER OF CONSUMER 
SERVICES AND MERCHANDISE QUALITY ASSURANCE* TRADE 
PROTECTION AND PRIVATE LABEU ZAYRE CORP. 

Ms. RouuAu. Hhatik you. Senator Kasten. It's a pleasure to be 
here. The reason Vm here is to give you an idea of what retailers 
are doing in the area product safety. 

Product safety is a mf^or concern at Zayre. Each year we have 
several independent toting laboratories test thousands of the items 
we sell. We can't test everything we sell, but what we do impact 
on, first of all, are toys for diildren, particularly imported tovs. 

We feel the natioiml manufacturers are doing a very good job in 
testing their products for the most part. We also tests items like 
pacifiers and infants' furniture and so forth. In midition to toys, we 
test anything from hair dryers to motor oil. We check for £^rvice- 
ability, durability and most impcnrtant product safety. We test for 
government as well as indurtry standanto* 

In addition to testing cnu: merchandise, and we tacy to test as 
much as possible prior to imrchase, we monitor customer com-^ 
plaints from any of our 275 Zayre itepartment stores across the 
country. If a customer brings scnnething back and says that there is 
a problem with it, their child was hurt or could have been hurt 
from it, we have our stores immediately ccmtact <mr office in corpo- 
rate headquarters in M£^»achusetts and report tt^ problem. 

We try to get our hands on the particular item thiat was returned 
to the store and some new merchandise and test tliem and see 
what we find out. If there is a potential safetv hazard, we immedi- 
ately remove it from sale. We don't wait for the Consumer Product 
Safety Commission to tell us to do it. We do it and then we report 
to them immediately. 

As far as working with the national manufacturer, if that's the 
case, we will encourage the manu£sicturer to ointact the Consumer 
Product Safety Commk»ion. If we feel for some reamm they might 
not do it, we'll let tl^ Commission know about it. 

We react to all hazards immediately raeardle«i of whether they 
are covered under the Consumer Product Safety Act or the Federsd 
Hazardous Sub^an<^ Act. That goes for toys as well as any other 
products. We've even voluntarily recalled an item as a remit of one 
complaint. 

A few years ^o we had a complaint from a grandmoth .ying 
that her granddau^ter was sitting in a high chair that we soid. It 
was from a major U.S. manufacturer. The child was rocking back 
and forth in the chair and she nc^ced that her head was bleeding. 
When they checked, they found that the screw w^ prc^ruding 
from the pad just slightly. We had the product tested against new 
samples and hnind that the manufiu^urer we^ using a screw that 
was about a quarter of an inch too long and it was just enough to 
make it go through the padding and the child was bemg hurt from 
it. 

We pulled that off sale imn^iately. We worked with the manu* 
facturer We replied all of the screws. And that was very, very 
easy to rectify. 

The introduction of this legislation is very important. We've had 
another case that we've been involved with recently on a bike, and 



59 




56 



we feel it should have been handled nationally a little bit faster. 
We removed a bike from sale in May of 1983. The handlebar stems 
were breaking in some of the items and the manufacturer said it 
was because of welding problems. We pulled ours off sale. They re- 
placed the stems for us and for our customers and we took care of 
it. 

In the meantime, I believe the manufacturer has been working 
with other retailers to fix the bikes, but it wasn't until June of this 
year that it was announced to the publir as a national recall. I be- 
lieve this is due to the lengthy process required to pull children's 
merchandise from the marketplace. 

In addition to product testing, we try to provide information to 
our customers on matters in th^ interest of safety. We have bro- 
chures which I brought with me on toy safety, wood stoves— things 
that don't apply to children— we try to cover other things. We feel 
it s very important for our customers to have this type of informa- 
tion. 

In summary, we're very much in favor of this legislation and we 
hope it receives quick passage. 
Thank you. 

Senator Kasten. Pat, we thank you very much. Although the 
child re^raint issue is not one of the issues we're with today, I 
know it's of great intere^ to many people in this room who have 
been working with children. We're plea^ therefore, that you have 
brought along some of your question and answer factsheets regard- 
ing child safety. 

As I say, it s not a subject of this hearing, but as Nancy pointed 
out, this legislation will cover children's furniture such as that 
crib. It would cover a safety restraint ^t, and in fact all toys and 
children's products. We have made it as broad as we can in order 
to deal with the kinds of qu^ions that you're talking about. 

Pat, thank you for comiiig to Wisconsin to talk about this ifi»ue. 

The next witness on this panel is Camille Haney who is the 
president of the Haney Co. She's here representing the Wisconsin 
Manufacturers Association. 

Camille Haney. 

STATEMENT OF CAMILLE HANEY, REPRESENTING THE 
Wist ONSIN MANUFACTURERS ASSOCIATION 

Ms. Haney. Thank you, Senator and Chairman Steorts. I'm glad 
to be here, and I want to say that we in Wisconsin are proud that 
our Senator has taken the lead in introducing this important con- 
sumer protection l^slation. 

As you mention^ I'm the president of a consumer communica- 
tions and research firm that advises busine^es in the area of 
public affairs and consumer relations. I'm here today on behalf of 
the Wisconsin Association of Manufacturers and Commerce. I serve 
as their consumer affairs consultant and also serve on the board of 
the Wisconsin Safety Council, and although I'm here to represent 
the industry perspective today, I've al£K> had firsthand experience 
in both government and consumer advocacy. 

The Wisconsin Association of Manufacturers and Commerce 
wholeheartedly endorses the passage of S. 2650, Our members 



ERIC f;o 



57 



which include more than 20 toy manufacturers and distributors 
share your concern about any poasibihty that a child could be m- 
jured by a delay in recall of an unsafe product 

Children who cannot represent themselves m public policy dis- 
cussions such as this hearing depend on our wiUingnras to take re- 
sponsible action on their behalf. It is incomprehensible that under 
our present Federal statute chUdren's toys and other products u^ 
by children can take from 4 months to severd years to be removed 
from the marketplace as has been mentioned before. 

Our members strongly endorse the standards of the U^. Con- 
sumer Product Safety Commission and its product r^l proce- 
dures. Besides being in the public interest, it is also m the best in- 
terest of the reputable manufacturers and distributors to support 
expedient recall of unsafe products. We have a real commitinent to 
seeing that uniform standards of enforcement are appUed to toy 
manufacturers in every State. , , . . 

Wisconsin has had the reputation for being on the cuttoig edge 
of important consumer legislation and for coojierative efforts be- 
tween consumers and business. In 1975 Wisconsm toy manufactur- 
ers and consumers worked together to promote the passarc of a 
strong State toy recall statute. In fact, Wisconsm has the ability to 
move faster than Fe<teral agencies in removing dangerous con- 
sumer products of all types from Uie marketplace. 

In r^rching this legislation, I spoke witji a WMC member who 
is one of the largest toy distributors in the Midwest He pomt^ out 
that the toy industry itself has done a good job of not jurt observ- 
ing toy safety standards but setting those standards, and he added 
that standards within the toy industry are often even more strin- 
gent than those required by product safety laws. . ^ , 

Some companies have voluntarily removed products from the 
shelves without waiting for a Government agency to tdte the nec- 
essary legal steps to force a rec^Ul. The woman from Zayre s just 

gave an example of that. ., , ^. 

Wisconsin toy distributors an highly selective ronsumers them- 
selves when buying toys for their customers, both here and abroad. 
Toy buyers carry lie CPSC bible of rtandards on buying trips and 
report that foreign manufecturers also are becomuig knowledgea- 
ble about U.S. trade safety standards. 

Manufacturers spend large amounts of tune and resources on 
product improvement research. The example you gave. Senator, 
Mattel recently developed a nontoxic opaoue additive for coatuig 
toys that makes them sensitive to x-ray films. In case of an acci- 
dental swallowing of a toy particle, that particle can be found more 

^^^aconsin toy manufacturers already comply with theirown 
safety requirements as well as those set by the Stote and FedenU 
Government. They are as concerned as anyone about the safety ot 
their small consumers. Most reputable toy makers develop their 
products with the highest possible safety standante. That » why it 
important to have this legislation pa^ed t^ ensure that the 
entire industry wiU have to comply with the provisions of the Con- 
sumer Product Safety Act. t • 
The WMC does not feel that this bill will put any undue hard- 
ship on toy producers or distributors. Speedy recall of any product 



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61 



I 



58 



that could somehow slip through the regulatory safety net is the 

manufacturers of children's products. 

WMC applauds your role. Senator Kasten, and the leadership of 
<..hairman Steorts m proposing this legislation. We are anxious to 
see hazardous toys and children's articles comply with the same 
recall procedures as those required for our consumer products ' 

Thank you. 

{The statement follows:] 

&rATKMKNT OP CaMIIXE HaNEY, PRESinBNT. HaNRY ('<>.. AND CrjNSUMEH ArFAIIffi 
t^NSULTANT, WiStTONSIN AfiBOCIATlON OT MaNUFACTOBHIS AND CX>MMiCKCK 

Thank voi: Senator I am glad to be here and want to Hay that we in Wisconsin 

Today I am speaking as the Consumer Affairs Consultant to tlte Wisconsin 
mtion of Manufacturers and Commerce (WMC». I am also on the Boa^of the \C 
JS%^'^"'' * ^'T*^ ^ Wisconsin Association of ManufectuS^ aS 
J[^^ Wiwonsin Association of Manufacture-r^ and (^mmeiw is a state- 
SmJJSS^ organization representing 3.000 companies and 100 local Chambers of 

"^present the industry perspective today. I have also .,d 
first hfind experience in government and consumer ^vocacy I am currently ihe 
President of a corwumer communications and research firm that advises businesses 
"'^ ^^'If^ consumer affairs. Before this. I served as Com.umer Affairs 
Uordmator in the Wisconsin Attorney Generars Office of the Consumer Protection 
and was a member of the Product Safety Advisory Council of the Wisconsin D^rt 
ment of Agriculture. Trade and Consumer Protection. I also served two terms on the 
White fiouse Consumer Advisory Council. 
In fact, 10 years ^ while B<;b Kasten was a Wisconsin State Senator, we worked 
^" ?^ very same consumer issues that remain pertinent today- 
consumer information and education, consumer protection, dispute settlement and 
•„ fi5^^"* °^ business, education, government and consumers in address- 

The Wisconsin Association of Manufwiurers and Commerce wholeheartedly en- 
i'JISf J^l'^T^"^ Toy Safety Act. Senate Bill 2850, Ou- members, which in- 
clude mwe than M toy manuf«;turers and di^ibutors. shai« Senator Kasten s con- 

unsafe product Children, who canmA represent themselves in public policy discus- 
thdr b^hair «" willingness to take responsible irtion on 

^lL'^j^"}S^^f!!f^^^*^ ""'^ present Federal sUtute. children's toys and 

by chiWren. a«i take from four months to several years to be 
^rtf.;"^V!!l'™"?'**P'*^ ^ defective toaster can be recalled almost immedi- 
ately but a defective toy must go through an entire rulemaking process beforv a 
recall procedure can be initiated. » 

Our members strongly endorse the standards of the U.S. ('turner Product 
ftalety Umimi^ion and its curri'nt consumer product r«:all procedures. Besides 

!ri' * ^ ^^'"^ inti rest. it is also in the best interest of reputable manufacturers 
and distributors to support expedient recall of unsafe products. We haw a r«il com- 
mitment to seeing that uniform standards of enforcement are applied to toy manu- 
facturers m every state ^ t^j umiiu 

reputation for being on the cutting edge of important consu^wr 
Illation and for cooperative efforts between consumer* and manufactu«-rh In 
iJ^i„ oui own state toy manufacturers and consumers worked to poss a stronc toy 
recall bill in the state leui.slature In fart Wi-ronHin ha& the ability^, *„<,vc faMer 
tnan P«^ni agencies m removing dan>;*-rous consumer products of alt types from 
the marketplace In researching this legi.slation, I spoke with one of our WMC mem- 
t)ers who IS ono of the largest toy distributors in the Midwest He pointed out that 
the u.y industry itsHf hnK done a good job of not just observing toy «ifetv standards, 
but j«^t.ng those standards He added that standards within the toy iiidufitry ar* 
oRen more .stringent than thoH- .equired by the product safety laws. Some compa- 
nies have voluntarily removed produ( Us from the 8h«-lve« without waiting for a kov- 
ernm«'nt agency !o take the n« . ^vsj.rv U'^hI steps to force a rt-call Toy distributors 
hcTf lire highiv selti tivi- "c.msiirj>en. ' when Nelecting toys for their cusfomere both 



erIc €2 



59 

het^ and abroad. Toy buyers carry the CotMiBier Product Safety Ccmunflssim 
"bibte" of atandards on Imyuig trips and report that finnnign maoufiacturers are 
knovrtedgeaUe about Ammcan toy safety slaiidanb. 

Toy manufacturers fvend lai^e anmmte of time and resouroes on (nroduct Un- 
frnvenieftt research, fw exam|rite» Mattel* Inc. recently devek^ied a noti4oxic» 
opraue acfaiitive fM coating toys that makm them eeisitive to Blnm in case of 
accidental swallowing of a tqy partkle. They are making the product availaUe to 
otl^r tc^ roanuiacturera as well. Toy intNhioeis luve their own internal watchdog 
mechamnns and th^r producte umfeffKO extensrre reaeardi und^ actual we coodi* 
tione before these products are sold and distrflmted 

Wbcomin t<^ manufeicturm alrra4y oom|^ with their own safety rHjuirements 
m well as those set by the titate and fedmU govermnmt lliey are nmre concerned 
than anyone about the safety of their mail consumers. Most reputable toy makers 
devek>p their prodcjcts with the highest posribto s^9ty ^ancburda. That m why it m 
important to have kipslation such as th» Mil passed so that the mtire indtffitry will 
have to comply with the prov^om the Omsamet Product Safely Act 

The Wtecoosin Assodatioo of Manufectorers ami Qmmieroe oo^ not feel that 
tlw bill will put undue haidship on toy prodiKefs or distributors. Speedy recall of 
any product tnat could somciiow throi^ the regulatory safety net is the h-gh- 
estpriority for manufacturers of chiUroii's |»tMlucta 

Tne Wisconmn Association of Manufacture and Cimmieroe apfriauds Senator 
Kaslen's rote in |m>poring ihm tegMation and is an«ow to see hasanfanai toys ami 
children's articm comfrfy with the same recall procedures as those that are re- 
quired for other cmsumer products. 

Thank you. 

Senator Kasten. Camille, thank you very much. 
I'm just looking at the clock, and Vm abo told that we added a 
third panel yesterday at the request of some people at Children's 
Hospital. We're anxious to have Uietr input, but I fear we're not 
going to have an opportunity to ask a omiple of questions which we 
had prepared. I wanted to get involved m a discunion of recalls 
versus voluntary compliance* In other words, rulemaking versus 
recall. It's something that I think we'll ask a numl^r of people who 
are testifying here to respond to in v/riting since we won't nave an 
opportunity for a lengthy discussion. We did have an opportunity 
to discuss it during the Washiiiffton hearing and it turned out to be 
quite an interesting exchange. So, thank you all very much. 

Mr. Luzi. Just one quick comment if I could and I just wanted to 
raise the point particularly in regard to the amendment on the 
bottom of page 5, staff draft, where the word insertion of ''defect" 
is put into the language that is there <m line 16 in regard to toys or 
article containing a defect which creates substantia risk to chil- 
dren which did not appear in the original title, and the only com- 
ment I would want to make just quickly is that I would certainly 
be concerned about the insertion of that word because of legal 
proofs of burden in regard to the definition of defect as well as the 
fact that you may, in fact, have an article which could create a sub- 
stiintial risk to children and not necessarily be a defective article. 

Senator Kasten. OK. Thank you for that cmnment. We will re- 
spond to that, plus your other comments, and let me thank all of 
the members of this panel. 

With all these wires we've got down on the floor it's a real jungle 
to get through. 

Our next witn^ is P^gy Rosenxwig, Wisionstn State Repre- 
sentative and also a memoer the Committee on Commerce and 
Consumer Affairs and the Committee on Health and Human Serv- 
ices, representing Wauwatosa, WI, and neighboring areas. 



ERIC 



63 



60 

P^gy, it's a wonderful privil^?e for us to have you appear before 
the committee. 

STATEMENT OF PEGGY A, ROSENZWEIG, WISCONSIN STATE 

REPRESENTATIVE 

Ms. R08ENZWEIG. Thank jrou. Senator Kasten, and I want to 
thank you personally for giving me the opportunity to testify on 
behalf of S. 2650, the Toy Safety Act. 

You gave my credentials, but the one that you didn't give or per- 
haps two that are terribly important to me is that in Uie first in- 
stance I am the m<^er of five sons, a ed 13 to 25. Also Tve had 
some experience in marketing before I j^^ined the State legislature. 
So, I have some recognition of the problems in the business world. 

All of these reasons I think give me a unique, perhaps not so 
unique, but important perspective on why this l^islaUon is so 
needed and why I think you should be applauded for introducing it. 

It's my opinion that children, certainly as everybody has indicat- 
ed, are the most vulnerable citizens, young citizens of this a)untry 
and do need protection, but for another reason too, I think it's ter- 
ribly important that we take the time now to focus on the prcAlem 
of toy safety because, in fact, the market is changing. The prolif- 
eration of products for children moves along at a very, very fast 
clip* and that is because our society does want to focus on how we 
can educate our children and make the quality of life for them 
even better, and parents, in an effort to make tt*At quality of life 
better, oftentimes leap at a new product before they have had time 
to completely investigate it. So it's imporiant that we in Govern- 
ment take this time to focus on this problem nationwide. 

I won't go into the exact mechanism of your bill because, of 
course, it's been gone into before. But what I would like to tulk 
about is what I think is terribly important in what you've done, 
and that is to work for the coofwration of the manufacturer, the 
consumer, and Government tc^ether working hand in hand to 
make legislation like this work, and I think that it needs to be 
done in a timely fashion. I think that you've pointed that out, but 
to get a consensus of all three groups so that you can work togeth- 
er in a cooperative atmisphere I think is terribly important be- 
cause that trust that one starts with then enables one to move fur- 
ther legislation along as needed. 

I think Wisconsin, as Ms. Haney has indicated, is a good example 
of that, and as a Wisconsin legislator I'd like to point out with 
great pride that Wisconsin has one of the strongest recall laws in 
the countiy, and, in fact, it was the first State in the Union to have 
such a recall law. 

Statute No. 1(K).42 gives us the opportunity in the i^te of Wis- 
consin of recalling toys and all products, adult, children, off the 
mat ket befui f a heal ing. It uIm; K>ves u» the upiioit uf putliiig a 14- 
day hold on toys and other products, all products, adult products 
too. 

We hav years of historical evidence to prove that this kind of 
legislation can work, that manufacturers, retailers, and consMmers 
with Government can work to see that we have a safe environment 
for our children. It's terribly important that such legislation be 




61 

Federal* and I hope that this is the be^nning of more things *o 
come, and I just think your leadership is terrific, Senator. I hope 
that we can be helpful in our hearing i^re to focus throughout the 
country on the need for strong legislaticm in this ar^ 
Thank you again. 

Senator Kasten. Peg, thank you. As you can see from the 
makeup of the witnew iMuiels appraring before us, we have made 
an effort to pull all the c'ifTerent groups tos^ther. I think thai one 
of the strengths of this effort, the r^ison why it's going to pass, is 
because we do have the sui^rt from the consumer groups, from 
the manufacturers, and fnrni people in Uie nodical community. I 
thank you for. No. 1, what yoa*re doing for Wisconsin and. No. 2, 
for appearing before our committee today. We appreciate your tes- 
timony. 

Ms. RoSENZWEiG. Thank you very much. 

Senator Kaoten. Hie next imnel includes Gloria Rhone, Kenneth 
Johnson, Oeanna Scampini, and Jim Brown. If you would all come 
forward. 

Our first witness on this panel is Ms. Gloria Rhone, a registered 
nurse representing the Wee Care Day Care Nursery in Milwaukee, 
WL 

Gloria, we're happy to have you with us. 

STATEMENT OF GLORIA RHONE, REGISTERED NURSE, WEE CARE 

DAY CARE NURSERY, INC 

Ms. Rhone. Thank you. Senator Kasten. I'm very pleased to be 
invited to speak on this panel today. Wee Care E^y Care Nursery, 
Inc. is a private, nonprofit corporation. It was founded some 15 
years ago by the executive director, Johnnie Moon. We Iwve 10 
centers in the State erf Wisconsin, 6 concentrated in Milwaukee, a 
couple in outside communities and 2 in other m^jor cities in the 
State. We are dedicated to the cause of quality day care and will 
support any I^islatton that may impact on the weP -being of our 
children. 

On behalf of Wee Care Eteiy Care Nursery Centers, I would like 
to express our appreciation to you. Senator Kasten, for having suf- 
ficient interest and concern for the welI4ieing of our children to 
initiate the writing of the Toy Safety Act. In my position as prefect 
director for the day care family health program at Wee Care Day 
Care, I'm responsible for the monitoring of the day care environ- 
ment as it relates to the health, nutrition, and safety of the chil* 
dren enrolled in our centers. 

It is very disturbing to have children's products recalled years 
aflter they have been purchased and used, particularly liazardous 
objects. Such was the case a few weeks ago with an infant walker. 
It was made by Community Play Things, and weVe had it for some 
li or 4 years, and because of the leml Imse {mint it was very recent- 
ly recalled. 

If this bill passes, it would have signiflcant implications: One 
would be safer environments for the cniktren, and Vm using the 
term "environments" becaui^ I further want to emphasise my hope 
that we will look into the various environments that children are 
expraed to and not simply concentrate on the home situation. So I 



65 



believe that it will imply safer environments for the children, 
thereby reducing the total number of accidents occurring in our 
children. 

According to the National Safety Council accidental deaths in 
children have declined from over 10,(MM) in 1978 to 8,600 in 1983. 
This decrease has been attributed to tougher Government stand- 
ards for toys and children's furniture. Therefore, a more eflicient 
recall system for defective and/or unsafe toys would have an even 
greater impact on the number of accidents related to toys and 
other children's products. 

The second significant thing I think this bill would do is increase 
the sensitivity of the consumer in terms of selection of toys. Since 
it doesn't take 3 years to finally get it off the market, as people are 
bombarded with this information, I think they will develop a great- 
er degree of sensitivity. The third impact would be tighter quality 
control or tighter quality assurance policies and procedures insti- 
tuted by toy manufacturers. This would decrease the number of 
hazardous products available for public consumption. 

I see the toy safety bill as a stepping stone to future legislation 
that would provide lor a safer environment for our children^ and 
rd like to make the following recommendations for future consider- 
ation. One, and we've heard this one before, standards for imported 
toys. Second, would be expansion of the age labeling, and I would 
like to take it a step further and say that I would recommend that 
we consider age labeling across the media, and that would include 
TV, radio, newspapers, and magazines. 

The third item would be general labeling. The terminology 
should be such that the general public could understand exactly— 
what hazards exist. For example, we often see on electrical toj^ 
''Underwriters approved." To tell you the truth, to Joe Average 
that means very little, but if it's stated that electrical hazards exist 
if improperly used, that would he more meaningful. So Tm looking 
a terminology. 

Also I believe that labeling should indicate all potential hazards, 
whether it*s a major hazard or minor hazard, and for instance 
things like contains small parts, hazardous lo children under 6 
years of age. 

Another thing I'd like to recommend is that we look into public 
education in terms of toy manufacturers. That is, they could pro- 
vide brochures that accompany packaging of toys or children's 
products that would include sections on need for parental or adult 
suwrvision, when parts should be replaced, how to select and buy 
toys, environmental factors that may render an otherwise safe 
product unsafe; implementation of a toll free number to respond to 
questions on the safety of toys and children's products, implemen- 
tation of vWme type of Government stamp of approval for toys that 
meet (Jovernment reflations, statement of Government standards 
directed at typ^ of materials suitable for use in toys. 

Further, I believe that consideration needs to be given to party 
favors which usually become hazardous missiles. There's also a 
problem with party favoi^ made of crepe paper that have hazard- 
ous dyes that often end up in children's mouths. 

My last recommendation is when reviewing standards for toy 
safety the product should be evaluated for a variety of settings 



63 



such as homes, school, day care centers and various conditions such 
as siblings' misuse and type of supervision required. 
Thank you, Senator Kasten. 

Senator Kast^. Thank you for your additional suggestions. 

This isn*t something that stops with the passage of legislation. 
Vd like to think this is something that begins with the passage of 
this legislation. Again, we apinneciatu your comments and your sug- 
gestions. 

Our next witness is Dr. Kenneth Johnson who is the chapter 
chairman of the American Academy of Pediatrics. He is also with 
the Milwaukee Medical Center. 

Doctor Johnson. 

STATEMENT OF OIL KENNETH O, JOHNSON, CHAPTER CHAIRMAN. 
AMERICAN ACADEMY OF PEDIATRICS 

Dr. Johnson. Senator Kasten and giiests, as you know Tm 
Doctor Kenneth Johnson, practicing pediatrician here in Milwau- 
kee and chairman of the Wisconsin chapter of the American Acad- 
emy of Pediatricians, which includes 287 pediatricians in the State. 
Vm here to speak in favor of the Toy Safety Act of 1984 introduced 
by you, Senator, and Coi^ressman Waxman. 

'utese bills would enable the Consumer Product Safety Commis- 
sion to protect the public by ordering notice on repair, replacement 
or refund of toys or articles which creates substantial risk to chil- 
dren. Certainly children should have the same protection afforded 
our nation's adult population. 

Safety cannot be overemphasised. In 1975 the American Acade- 
my of Pediatrics, a nationwide organization, stated its interest in 
safe toys for preschool children and stated that a test method uti- 
lizing the transfer of all known types of energy, chemical, accousti- 
cal, nuclear, mechanical, electrical, thermal and bic^qgical should 
be the basis of scrutiny to eliminate hazards and be the model for 
universal adoption by toy manufacturers. Such a comprehensive 
testing should be performed on all children's articles ana failure to 
comply should enable the Consumer Products Safety Commission 
to act swiftly to eliminate the hazards. 

If we do not have this protection, then some of the thin^ could 
happen that I have examples of here todav. The display collection 
over there in the comer entitled foreign bodies is a collection of 
items removed from children at Milwaukee Childrens Hospital, and 
in this collection there are items, some of which are i^rts of toys 
that came dislodged from the toys and lodged in children. 

For the sake of time Til just refer you to the display, but there 
are small toy disks thereon which were found in the ^phagus of a 
1-year-oId boy and the dramatic sink drain in the center which was 
found in the mouth of a i;^-month-old child Numerous other exam- 
ples there that you can all look at at your leisure. 

To eliminate these pnAlems we need toys that are safe by being 
relatively indestructible and of large enough size not to be aspi- 
rated. 

We can't rely on voluntary recall for the swift removal of all 
dangerous products because not ill manufacturers comply volun- 
tarily. 



67 



I do want to give credit to thc^ manufacturers who have cooper- 
ated by voluntary recall, sonnie of which would be explained by 
Evenflow^ s little squeaker pacifiers which were shown to pull apart 
and enable the parts to be aspirated or Fibroclay by Milton Brad- 
ley Co., an art modelinK compound used in papier-mache found to 
contain asbestos, Durham Industries which removed the Mickey 
Mouse crib train which could break apart and cause small parts for 
choking. 

We must also constantly be aware of changing times. In 1971 the 
Federal Government standard required that all fabrics used in chil- 
dren's sleepwear be resistant to ignition when exposed to flame 
and stop burning once the flame is removed. We thought we were 
safe. 

We now know that any soap product such as bar soap, powder 
soap, liquid soap when used in washing a flame-resistant garment 
can cause the afterwash residue that can build up on that fabric 
and become flamable again. This can be prevented by using phos- 
phate, powder detergents or heavy liquid detergents and rinsing 
thoroughly. 

Numerous other examples have been enumerated in the June 8 
Washington hearings. I would like to stre^ and compliment the de- 
velopment by Mattel Toys of the barium sulfate additive that now 
enables plastic in toys to be radiopaque for diagnostic purposes. We 
also need ongoing legislation to — and educational pn^ams to 
make parents aware of the potential dangers. They must constant- 
ly assess the toys for wear, potential breakage, newly developing 
hazards that cannot be protected for forever by the manufacturer 

We need more warning labels on products to build awareness 
such as Gerber meat sticks which carry a new labeling that warns 
of pc^ible choking hazards and advises parents that this food 
should be fed only to toddlers who have teamed to chew properly, 
or the button disk alkaline batteries used in toys, watches, cam- 
eras, et cetera, that now have a warning that's susceptible by chil- 
dren to choking or swallowing accidentally. TTiese are harmful as 
they disintegrate and can cause mercury poisoning or chemical ero- 
sions of the body* 

We need public service announcements pointing out these poten- 
tial dangers. We need awareness prc^ams to help parents realize 
the potential dangers such as the injury prevention prc^am of the 
American Academy of Pediatrics. We can never rest on the laws of 
our land to protect us, but we can certainly be thankful to Senate 
bill l^liaO as another step for better protection in our living. 

Thank you. 

Senator Kasten. Doctor Johnson, thank you very much. For 
those of you who haven't had an opportunity to look at the display 
entitled foreign bodies that Doctor JohnM)n bruuf bl, il was really 
an education for me. Most of the toys and children's equipment 
that are before us came with me from Washington. I should say 
from the Consumer Product Safety Commission in Washington. 
These are examples that we have t^n us^ig in order to dramatist 
this problem and the need for this legislation. But Doctor Johnson 
h«is come now with, I think; an even ntore meaningful display, and 
I hope that everyone will take a Iwk at it. It s an incredible array 



65 

of different objects a>llected over what period of time? Are we talk- 
ing about a couple of years or 6 or 7 years? 

Dr. Johnson. Protmbly over a l&^year period. 

Senator Kastkn. Over a l&-yi^ period 

Dr. Johnson. This isn't all comprdliensive. These are jxxst exam- 
ples. 

Senator Hasten. Our next wfuiess is Mr. Jim Brown, the presi- 
dent of the Wisconsin Consimiers L^igue. 

Jim, you ai^ieared before our subcommittee in Washington, I be- 
lieve. It's nice to have you with us today. 

STATEMENT OF JAMES L. BROWN^ PRESIDENT. WISCONSIN 
CONSUMERS LEAGUE 

Mr. Brown. Thank you. Senator. It's a fine opportunity for the 
WCL to again appear bef<Hre you. 

WCL is the largest statewide ommimer organization in Wiscon- 
sin, and product safety in many forms has been a n:u9^r concern of 
ours for years. Accordingly we welcome this opportunity to lend 
our support to many of the groups and individuals appearing 
before you today. We^re pleased that you, Senator Hasten, as our 
Senator are sponsoring this effort and Tm also personally pleased 
"Representative Rosenzweig who happens to be my assembly 
» ^ntative is here endorsing this legislation. 

Clearly when government nets or is empowered to act to protect 
the public safeW it's both appropriate and vital that its efforts and 
authorities be directed toward protecting thoe^ more viilnerabie to 
potential harm. Tliese persons most typically fall into two catego- 
ries; first, those most frequently exposed to cungerous situations or 
products and, second, those least idble to identify, assess, and pro- 
tect themselves from potentially dangermis mtuations or products. 
This latter group most commonly include the handicapped and 
i t ildren and it is, of course, children who would be primarily bene- 
**>ed by meaningful enforcement activity upon the enactment of 6. 
2650. 

What we would uiige is that more than merely expedited i^fal 
authority be conferred on CPSC respectir^ this subject. On June 
25, 1981, speaking before the Suboimmittee on the Consumer of the 
Senate Commerce Committee chaired by you. Senator Hasten, I ob- 
served that regrettably enforcement all too often has b&en the 
black sheep of the consumer protection family. I went on to lament 
that all too often additional substantive consumer protection re- 
sponsibility is placed on regulatory agencies by legislative bodies 
while they refuse or neglect to add additional support services and 
stafT to such agencies to effectively develop and enforce implement- 
ing regulations. 

In response to a auestion from yourself, Senator Kasten, regard- 
ing this prdblem, Wisa>nsin assistant attorney general James Jef- 
fries, former chief of the State department of justice, consumer pro- 
tection division, indicated that, too often enforcement has been the 
foigotten child is absolutely true. We would also nc^ that at least 
one leading commentator in the field of safety regulation indicated 
that the failure by the Food and Drug Administration, the agency 
with responsibility for administration of the Federal Hazanlous 



er|c 69 



66 

Substances Act statute that would be amended by S. 265(K 'to 
update staff resources on product safety matters was a major cause 
of the establishment of a new agency, namely the CPSC, for that 
purpose." That's Attorney Michael Lemor of Washington. DC. 

We would urge you not to repeat this mistake and would note 
that meaningful enforcement involves both investigation and pros- 
ecution, prophylactically and monitoring on an ongoing basis. If S. 
2G50 were to make the procei^ of removing unsafe toys from stores 
easier by removing procedural hurdle and filling gaps of authori- 
ties, then presumably more agency activity in this area would then 
follow. 

Without support for this activity either it won't occur as intend- 
ed or other agency activities will diminish as support resource are 
shifted within the agency to implement this new directive. The 
former instance would be a cruel hoax on all interested in tov 
safety, while the latter responsibility would result in an unintend- 
ed and unfortunate reduction in other safety-promoting efforts of 
the agency. 

We can t believe that either outcome is intended by you. Senator 
Hasten, or any other supporter of safe products. Put more bluntly, 
if the police are to be given expedited authority let's make sure 
they have the tools to Implement that authority. 

By way of technical suggestions, our comments are few but we 
feel important. Again referring to the staff working draft of June 
13, on both page 2 at line 12 and page 3 at line 11, the substantive 
or operative language is, ''contains a defect which creates a sub- 
stantial risk of injury." We would suggest considering the omi^ion 
of the requirement of the finding of the defect. This adds a sepa- 
rate requirement that may or may not in fact create a procedural 
barrier towards effective enforcement action. 

We're not terribly comfortable with the idea that a court might 
or might not find a defect, most typically a design defect, in one of 
the products that you have demonstrated here today. We feel that 
by removing that requirement, you will probably expedite the pos- 
sibility of effective enforcement. 

We would also note that the Wisconsin statute to which Repre- 
sentative Rosenzweig referred earlier, section 100.42, subsection ii 
contains language operationally substantially similar to the goal 
that we believe S. 2650 seeks, but it does not contain the require- 
ment of a finding of a defect. The operative language there is, **un- 
rea.sonable risk of injury or imminent hazard to the public health 
safety or welfare." We believe that if there is any pmisibility that 
the legal riH|uirement of the finding of a defect might inhibit eflec- 
tive enforcement, that that possibility should be removed. 

N<?w, we admit that this is somewhat broader than the compara- 
ble section of the (\)nsumer Safety Act, section 15. However we feel 
this is justified as it is aimed at children who as we indicati»d 
before, and there seems to be a consimsus here, prol>ably need spe- 
cial assistance with r€»gard to the products that they deal with. 

We als<i would note that this expedited enforcement would be a 
bf^nefit to nianufactureni and any other p^irty if the expedited 
agency action somehow would prevent a subsequent expensive 
product safety liability action, a topic with which we know you 
have more than a pas^^ing interest and great familiarity. 



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67 



We would also urge your considering—perhaps not in the context 
of this bill, but considerii^ extending the recall provisions of con- 
cepts incorporated into the staff working draft to the Flammable 
Fabrics Act and the Poison Prevention Packaging Act as well. 

We would like to congratulate you on your efforts on this act and 
urge your prompt action on this legislation. 

Senator Kasten. Jim, thank you very much. 

As you said, the goal of Congressman Waxman and I, when we 
began was to make the Federal Hazardous Substance Act equiva- 
lent to the Consumer Product Safety Act. That's why we picked up 
some of the wording. But I'll be happy to review your comments 
once more. I think Al was touching on the same point as well. Our 
goal was to make the two the same, to make them equivalent. 
That's why we adopted that. I think the Consumer Federation of 
America supported the equivalency concept in testimony before the 
House. But let us di^st and work with that again. 

Mr. Brown. We certainly support the equivalency motion, Sena- 
tor, and we urge at least consideration be given to expediting this 
further through the elimination of a potential barrier. It may well 
be in practice that most courts would find a d^ign defect with 
regard to these types of products, for example, but if there's a pos- 
sibility that—as an attorney I can tell you that sometimes these 
things can't altvays be relied on when it comes to judicial enforce- 
ment. 

Senator Kasten. Thank you. 

Our next witness is Deanna Scampini, who is a speech patholo- 
gist from Wauwatosa, Wl. Deanna, I apologize for skipping over 
you. We're pleased to have you with us. 

STATEMENT OF DEANNA SCAMPINI, SPEECH PATHOLCMilST 

Ms. Scampini. Thank vou. Tm speaking as a speech pathologist 
and also as a parent of three preschool children and who I feel are 
most vulnerable in this case. 

I strongly support the passage of the bill Senator Kasten is pro- 
tiosing. Although i feel great strides have been made in recent 
years regarding toys and children's products, it has been my expe- 
rience to encounter some extremely nazardous tojrs on the market. 
As an example, most combat-type toys like guns and pirate toys, 
bows and arrows, things like that come to mind most readily. 

While these typically have age limits stated on the package, they 
far too often fall into the hands of a child who is too young or too 
immature to handle them. Another example is the indoor gym 
house which 1 purchased for my children. Like was stated earlier, 
it's a reputable dealer and you feel you can trust them. Shortly 
after that 1 was made aware of the safety hazard involved. The top 
step of the ladder was too close to the platform which could cause 
strangulation should a child's head get wedded in between them. I 
saw a notice regarding this hazard on the local news. The manufac- 
turer was ofTering to replace the ladder at no charge to me with 
one in which the steps were placed so that the child's head could 
not be wedged and entrapment could not occur, but this was not 
until the death of a child or as the sign states three children until 
the hazard was brought to li^ht. 



71 



68 

Other children's products which need constant supervision of 
safety standards are swing sets^ playpens, safety gat^, play yards, 
cribs and car seats. All of these are potentially dangerous articles. 
Car seats, for example, are often more dangerous when not used 
properly than if the child was in no restraint sj^tem at all. 

Pricing of toys and other products has a great impact on which 
articles a parent buys. In an effort to save money a parent may 
buy a cheaper model which in most instances is an inferior prod- 
uct. To reduce the price some swir^ sets, for example, are made of 
an inferior grade of metal not strong enough to withstand the 
abuse of children constantly playing on it. Cheaper plastics which 
may look good in the packaging and seem to be a better buy will in 
all likelihood crack or break rendering the toy unsafe because of 
sharp edges. 

In this light I feel minimal standards should be set r^arding the 
quality of materials used, be it plastic, metal or wood. 

Age labeling also can be very misleading. What one child can 
handle at age 4 is very different from another child depending on 
the developmental stage of that child. Maturity levels, both physi- 
cal and emotional, are very different in children of the same chron- 
ological age. Parents need to know what their child can safely deal 
with. Oftentimes toys are purchased because of the age level stated 
on the packaging, but it s not until the toy is in the hands of the 
child is it known whether it's meant for him or not, and all too 
likely it isn't. 

I feel there's a greater need for communication between parents, 
doctors, toy manufacturers, consumer protection agencies and the 
m^Hlia to evaluate and educate others r^arding children s prod- 
ucts. 

Parents need to know who to contact should a toy which they 
have purchased appears unsafe. The Consumer Product Safety 
Commission in turn should be able to have the article* recalled 
without delay so as to protect children from its hazards. Passage of 
the Toy Safety Act will expedite the recall of potentially dangerous 
products thus protecting our mixit valuable resource, our children, 
before tragedies can occur. 

Thank you. 

Si'nator Kastkn. I>eanna, thank you. 

I'd like to thank all the members of this panel. It s interesting 
that one of the things that this legislation doesn't touch on, but 
that almost everyone on both panels has mentioned is this age la- 
billing qui?stion. It s one that maybt* we ought to fmy a little bit 
more attention to on the consumer subcommittee. Nearly all of you 
in spite of your differcnit viewpoints, have stated, that right now 
thr- age labeling system is not adequate. I'm very interested in 
those comments. We don't addrctss that qu^^tion, but maybe we 
ought to Thank you all very much. 

Our next panel is Mr. Vice, Dr. Montgomery and Mr. Showers, 
all representing Milwaukee* Childrtm's Hospital. I am particularly 
pleased to have I>ean Showers on the opposite side of the table 
from me For a long time he sat behind me in the State Senate and 
we\e worked for and against each other in a number of difTertmt 
wavs in the past I'm happy that we're all working tc^ether now. 
Jcihn Vice is the President of the Milwaukee Children's Hospital. 



7^ 




69 



Doctor Edwin G. Montgomery, Jr., is the chief of staff at Milwau- 
kee Children's H^pital and Dean Showers is the public relations 
director of Milwaukee Children's Hc^pital. 
Gentlemen, proceed in whatever order you had planned. 

STATEMENT OF JON E. VICE, PRE.SIUENT, MILWAUKEE 
CHILDREN'S HOSPITAL 

Mr. Vice. Thank you, Senator Hasten. We'd like to thank you for 
this opportunity to support the Toy Safety Act of 1984, 

As I understand, the main jwint of your bill is to provide faster 
recall from the market of unsafe toys or other articles that are in- 
tended for use by children. It s ironic that because of api^rent leg- 
islative oversight the Consumer Product Safety Commission can 
more easily recall products intended for adult use than it can for 
those unsafe toys and other article meant for use by children. Our 
children are vulnerable enough as it is. It is possible that trusting 
parents can purchase and provide to their children uns^ife toys. 

We at Milwaukee Children's Hospital strongly urge speedy pas- 
sage of this Toy Safety Act. Because of the current cumbersome 
procedure it can take up to 2 to 3 years to remove from the market 
an unsafe product or toys that parents would continue unwittingly 
to provide to their trusting children. 

At Children's Hospital we care for sick and injured children as 
well as their families. That is our mission. It is a logical extension 
of that mission for me to support this legislation today. 

You know children are injured every day when the most unlikely 
of objects end up dangerously lodged in their bodies. You have seen 
today on the board the display of some of the objects our physicians 
have removed from—over the years from the children. TTie display 
comes from our histolc^ laboratory. These ob^^cts have been re- 
moved from baby's lungs, their stomachs, nostrils, ears, mouths, 
airways and other orifices. 

As you see from the board there are objects such as a metal belt 
buckle, plastic hanger, earrings, rubber bands, hat pins, thumb 
tacks, and a lar^e sink drain. If so many children can be injured by 
such unlikely objects, you can imagine how many can be injured by 
unsafe toys that people trust. It is for this reason, for the children's 
sake, that the Toy Safety Act of 1984 must be successful. 

Thank you. 

Senator Kastkn. Thank you. I>o either of you other gentlemen 
have brief comments? 

STATKMENT OF DR. EDWIN G. MONTGOMERY, JR, CHIEF OF 
STAFF, MILWAUKEE < HILDREN\S HOSPITAL 

Or MoNTXiOMEKV. I'm Doctor Edwin Montgomery, chief of st<iff 
at Children's Hospital, and I appreciate the opportunity to testify 
in support of the Toy Safety Act The only problem I see is that we 
cannot ban sidewalks. We used to treat the kids on their skate- 
b<iards and now it's the break dancers who are getting bruised 
heads and so forth, but as chief of staff at Children's Hospital I'm 
in touch with numerous pediatricians and surgeons who have set*n 
alt too many childhood injuries caused by un^fe objcct^j on the 



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70 



market and that's certainly the reason why I support this legisla- 
tion. 

I think it's reasonable to say that no one dehberately designs 
unsafe toys or other article for use by children, but that is exactly 
the reason this legislation is as im(M)rtant as it is. Most consumers 
assume that what they buy for their children is safe. It is critical 
then that tne Consumer Product Safety Commission be provided 
with a procedure to recall unsafe objects our youngsters may be 
using just as swiftly as it can recall other consumer products. I in 
particular remember an incident reflecting on that prdblem of one 
youngster who we saw with a chronic hacking cough for 6 or 7 
months. Despite the best efforts I'd like to think of myself and sev- 
eral colleagues it could not be diagnosed until she ultimately 
coughed up a plastic toy stool from a doll house. 

It was not radiopaque, it was heartening to h^r that Mattel is 
making a radiopaque substance. This is the kind of action that is 
desperately needed and will make our children much healthier. 

Senator Kasten. I might say, we heard from Mattel in Washing- 
ton. Not only is Mattel going forward and doing this, but they are 
making the technol(«y and in fact the whole process, available to 
the entire industry through one or more of these toy manufactur- 
ers associations. 1 think it's fair to say that within the foreseeable 
future, it s likely that not only Mattel products, but all domestical- 
ly manufactured products will have that new feature. Mattel and 
the industry should be commended for it. 

Dr. Montgomery. I agree. We may not see a lesser number of 
foreign bodies, but we'll see them quicker. I think that's important 
ti ). It certainly seems apparent that the only reason that the com- 
' ission is currently saddled with a lengthy recall process on 
unsafe toys and other articles for children has to do with what you. 
Senator Kasten, have called a legislative quirk. As a citizen I can't 
think of any reason to oppose this legislation. 

In fact I think it's heartening that this proposal is support^ by 
Kepresimtative Waxman, a California Democrat, as well as you, 
Senator Hasten, a Republican. I was also pleased to learn that this 
proposal was supported by the Conn^'mer Product Safety Commis- 
sion and that no significant oppc^ition has surfaced from consumer 
^'roups» the toy industry or Government agencies. 

I would hope that that's an indication that the Toy &ifety Act of 
I'JM will quickly pass both the Senate and the House and will be 
Hignc^d into law by President Reagan. 

Thank you. 

S€>nator Kastkn. Thank you, IXxrtor Montgomery. 

STATK.MKNT OF l>EAN A. SHOWKKS, I'UBLK RELATIONS 
iUKKCTOR, MILWAI KEE ( HIUmEN'S IKKSPITAI. 

Mr SfioWKRs Sk^nator, Til be a little briefer than some of my sto- 
ries uswl to In* in covering the State Senate. I want to thank you 
for allowing me to supfiort the S, 2650. TcKlay I'm representing the 
Toy Safety Program of Milwaukee Children's Hospitiil. 

In l>i*cemlH*r each year Children's Hospital provides a program 
that we call .safe and sound toys, holiday gift sponsored by the 




71 

Child Life and the Human Resources Development Department at 
Children's Hospital. The program was aim^l at parents, day care 
coordinators and others who might provide children with toj^. es- 
pecially at Christmas time with the Christmas rush. 

The pn^am discussion and demonstrations include provision of 
the Consumer Product Safety Commission reffulations. stimulating 
age appropriate toys, teaching* children respect for their toys, 
making safe, creative to^ at home and also we provide a panel of 
toy store experts. 

The toy safety people at Children's are strongly in favor of the 
Toy Safety Act of 1984. We believe it's critical to empower the Con- 
sumer Product Safety Commission to recall unsafe toys and other 
articles intended for children without the lengthy processes the 
Commission now must use. We also believe that consumers must 
behave in a responsible way, and that's why we started our toy 
safety pn^ram. 

In that regard we've noted that the toy industry has not come 
forth in oppi^ition to Senate bill 2650. We believe that the pro^ 
posed sub C, sub 1 provisions adequately protect both sides in this 
marketplace issue, that is, the manufacturers, distributors and 
dealers on the one hand and consumers on the other. 

While it s true that the Commission would have to make a judg- 
ment as to whether a toy or other article intended for use by chil- 
dren creates a substantial risk, the Commission would have to pro- 
vide a hearing for all concerned before making that judgment. We 
believe that children and their parents need this added protection 
in the law. There's no sound reason that we can think of for ioyj 
and other articles intended for use by children to be treated differ- 
ent! v than other consumer products. 

inank you. If you have any questions I'd be glad to answer them. 

Senator Kasten. Gentlemen, thank you all very much. I'm par- 
ticularly pleased to have the testimony and the strong interest of 
Milwaukee's Childrens Hospital. Thank you for appearing before 
the subcommittee today. 

That concludes the regular witnesses that were scheduled on the 
panel. It s my understanding that there's at least one individual, 
Mr. George Wagner, who wishes to come forward briefly represent- 
ing the public, and, Mr. Wagner, why don't you come forward now. 

STATEMENT OF CEORGE WAGNER, LIBRARIAN 
Mr. Wagnek. Fine. 

Senator Kasten. We'll give you a couple of minutes. We're over- 
schedule right now. 

Mr Waonkr. Thank y^u much. Senator. I appreciate the oppor 
tunity. Tm a children's librarian in the city of Milwaukee, and I 
have worked with children for a number of years, and I would 
really basically just like to reiterate something that Mr. Luzi said 
from the Consumer League. And that is that in the l^islation that 
you are proposing that you include £K>mething to the effect that 
there will be a provision that would forbid U.S. corporations from 
selling these items to other countries. 

As you know and many in the audience probably are aware of, 
there has been a practice in the past of dumping unsafe and haE- 



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75 



72 



ardous products from pesticides to drugs to appliances to dilTfrent 
kinds of apparel onto unsuspecting Third World nations by,'^''"}*- 
American corporations, and I would hope that that Senate bill IhM 
would include provision for not allowing that to occur. 

That's really all I wanted to say. Thank you much 

Senator Kasten I thank you. Mr. Wagner, for your comment, 
and Mr. Al Luzi and also a couple of other people have referred to 
this point. You've now r«emphasized it. I'm not sure what the juris- 
diction of the Consumer Product Safety Commission is with these 
kinds of export issues. They involve more than just the Consumer 
Product Safety Commission which is primarily an independent do- 
mestic regulatory agency. However, because of your comments and 
other people's comments. I think this is something we can research 
and consider, if not in this legislation, possibly as a part of some 
other legislation. I think your point is well taken. 

Mr. Wagner Fine. Thank you much. 

Senator Kasten. Mr. Wagner, thank you very much. 

I would like to now in conclusion thank all of the witnesses who 
appeared here today. I think we made a very strong record on 
behalf of the need for our Toy Safety Act, Senate bill 2650. I m op- 
timistic that we are going to be able to see swift passage of this 
bill Congressman Waxman's bill has been considered by the proper 
committee and the House of Representatives is now going forward. 
Our bill will be going forward as well. Once more, on behalf ot the 
Cx)nsumer Subcommittee of the Senate Commerce Committee I d 
like to thank all the witnesses who appeared here today. We will 
likely to be getting back in touch with at least some ot you witn 
questions that we would like to have you respond to in wntmg re- 
garding some of the specific examples that we talked with. 

Thank you very much. The committee is at^journed. 

(Whereupon the committee adjourned at 10::iO a.m. until 2 p.m., 
July 2, m-i.] 



'6 



o 

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TOY SAFETY ACT 



MONDAY, JULY 2, 1984 

U.S. Senate, 

Committee on Commerce, Science, and Teai^^eportation, 

Subcommittee on the Consumer, 

Madi^ny WI. 

The hearing was held at 2 p.in*, at the Dugeon Center for Com- 
munity Programs, 3200 Monroe l^reet, Madison, WI, Hon. Bob 
Hasten (chairman of the subcommittee) inesiding. 

OPENING STATEMENT BY SENATOR HASTEN 

Senator Kasten. The hearing will come to order. This is one of a 
number of field hearings being held by the Consmner Subcommit^ 
tee of the Senate Committee on Conunerce, Science, and Transpor- 
tation. Today's hearii^ is a contintiaticm of field hearings we are 
having on the Toy Safety Act, S. 2650. We are pleased to be here at 
the Dudgeon Center for Community Praams. I would particularlv 
like to thank at the outset Frank Siscondin, Brian Adams, and Jill 
Steinbeiig. We would like to thank you all very much for your help. 

The first witness was to be Nancy Harvey Steorts, who is the 
Chairman of the Consumer Product Safety Commi£»ion. Unfortu- 
nately Nancy became ill brtv^m the hearing we Ii^Id this mo;Tiing 
in Milwaukee and this aftemocm's session so now she is in an air- 

Rlane on her way back to Washington. Spiking on behalf of 
fancy Steorts will be Mr. Vic Patralia, who is Regional Director of 
the Consumer Product Safety Commission. Mr. Patralia. 

STATEMENT OF VICTOR P. PATRALIA, REGIONAL DIRECTOR, 
CONSUL! ER PRODUCT SAFirTY COMMISSION 

Mr. Patraua. Thank you. Senator. The chairman asked me to 
enter into the record her personal statement as Chairman of the 
Consumer Product Safety Commission, so I will read it in her 
words. 

It is with great personal plea^re that I come before you today to 
comment on the Toy Safety Act of 1984- First I would like to take 
this opportunity to commend Senator Kasten for having the fore- 
sight to introduce this bill. I believe it shows sensitivity to the 
needs of the American consumer. This bill will hopefully correct 
the I^slative quirk that has for 10 y^rs hampenra the ability of 
the Consumer Product Safety Commission to work expeditiously to 
protect our children. 

Second, I would like to call attention to what I believe to be the 
most important aspect of the bill; namely, the tinw factor. This bill 



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74 



will allow the Cromniission to move swiftly. Its swiftness is best un- 
derstood in comparative terms. It has been pointed out that it is 
often easier for the Commission to recall a product intended for 
adult use than to recaU hazardous toys and children's articles due 
to a weakness in the Federal Hazardous Substance Act. 

Let's look again bv example of the squeeze toys. Although most 
manufacturers will be cooperative, two firms are not. This meant 
that it took from 1981 to i984 for the American marketplace to be 
free of a substantial product hazard. In contrast manufacturers are 
often far more willing to take prompt, corrective action for an 
adult product because they know that the Commission does not 
need to go through protracted 3(Kd) proceedings. Instead it can rap- 
idly issue an administrative compliant to compel a recall or other 
appropi iate corrective action. 

A case in point is the Commission's recent voluntary recall on an 
electric space heater. The heater had been involved in six fires^ in- 
cluding one in which an 18-month-old child perished. The Con- 
sumer Product Safety Commission contacted the manufacturer 
about this problem in Fdt>ruary of 1984, and a recall was an- 
nounced in April of 1984. This means that it only took 2 months to 
get an adult product off the market while it took 2 years to do the 
same with a child's toy. I am pleased that, in the future, the 
chancra for such an intolerable and unconscionable delay will be 
eliminated. 

Third and lastly, while we are talking about safety of children's 
products, I would like to emphasize my belief that much needs to 
be done in the area of age labeling. Age labeling is a key way that 
industry can help make toys safer for the individual child. I would 
like to see on every toy, particularly those intended for children 6 
years of age and under, appropriate age reconmendations and an 
explanation of the safety reasons behind the recommendation. In 
other words, better information for the consumer. I am confident 
that the combination of better age labeling for toys and the ability 
to recall hazardous children's products quickly will go far in reduc- 
ing the tragic toll of toy-related iniuries. Although toys are safer on 
the whole, in 19H2 there were still 12;i.000 injuries. That figure is 
simply too high. Again, thank you. Senator Kasten, for the work 
you have done in bringing to fruition the Toy Safety Act of 1984. 

Thc^se were the words of Nancy Harvey Steorts. 

St»nator Kasten. Vic, thank you very much. Let me say as we 
opim today s hearing, that the legislation before us is designed to 
exfH^dite the recall of unsafe toys and other articles intendi»d for 
use by childr€»n. Under current law, the Consumer Product Safety 
Conimi.ssion may order the recall of these products? only after en- 
Kagin^ in a very complex and cumbersome process. Basically be- 
cause of a legislative quirk, it's often easier to withdraw products 
intended for adult use than it is to recall hazardous toys and chil- 
drcMi s articles. In other words, it would be easier for the Consumer 
fVoduct Safety Commission to immediately remove from the 
market a deftnrtive toaster or iron than an unsafe toy such as this 
or any number of the toys and other children's products that we 
are Koing to look at in a moment. It takes them years to go 
through exactly the siime kind of process that enabk^s them to 
recall an adult product in a matter of months. 




75 

There is absolutely no reason that it should take longer to recall 
children's toys and article than it does to recall other consumer 
goods. In fact, a number of us feel that children's products are the 

firoducts that prdimbly should be removed from the marketpliK:e 
irst. Since dhildren are particularly vulneraJiile and often are 
unable to protect themselves, toys and children's articles that 
present a substantial risk of injury should be removcMi from the 
market as quickly as possible. 

The Toy Safety Act will amend the Federal Hazardous Sub- 
stances Act to allow the Consumer ProdiKl Safety Ck>mmission to 
order the immediate recall of toys and children's articles that con- 
tain a defect which creates a substantial risk of injury. The C!on- 
sumer Protection Safety Commissiou would no longer be required 
to issue a final rule banning a hazarious toy or article before it 
may begin a recall process. 

As we be^n the hearing* I would like to ask Vic to join me in 
demonstrating to you some of the specific examples in which we 
have seen Droblems in actually getting a recall. 

We will begin right here with a soueeze toy. This particular toy 
or rather these kinds of toys we gathered here for our five exam- 
ples resulted in the deaths of four children and five injuries after 
two firms refused to recall them. Once we finally g«rt the whole 
process ^oing« we were eventually able to demand a recall. 

Here is an example of a squeeze toy that's a dangerous size and 
shane. This obviously can be swallowed by the child. 

Now, let me go over to the exhibits. I will try to speak up so that 
you can hear and I will ask for Vic's help if I need it. This is an 
example of a mesh playpen. TTie playpen operates like this. This 
piece is firm when it's in the upright position as it should be all 
the time. However, now when they meet it collai^t^ What's hap- 
pened is that a number of people put their children in the playpen 
and then just because it is easier, left this down and the child 
rolled into the mesh. As a result, in this particular example, 11 
deaths are due to the fault we have seen rignt here. It took us over 
2 years in recall proceedings. Actually, part of this issue is still in 
litigation today. 

Now, let me show you one more example. This is, as you can s^, 
a headboard, from a crib or bed. (Xmously, a child's head can be 
caught in this design. In this example, a number of ii^uries, and 
deaths resulted siniply because of faulty dasign. Onw more, the 
Consumer Product Saf^y Commission identified the problem, but 
they were unable to do anything about it. 

A relatively newer kind of item that pec^le are worried about 
are the toys that hang right above the crib, OHbviously, this is the 
kind of toy a child could get wrapped up in and strangle himself or 
herself The Consumer Product &dety Commimion already knows 
of at least two deaths due to this kind of hanging toy, and is right 
no'v trying to move against them. 

This is a particularly interesting one, and Vic, if you can help 
me, the problem here if that. No. 1, the headb^*d» go up and 
down and. No. 2, the thing is not well made. The result is that it 
collafwes, and the child ends up being suffocated in the corner. 
There have been 46 difierent Consumer Prwluct Safety Commission 
in-depth investigations of this particular problem. In 19 of the 



ERIC 



76 

y 

cases, children have died! Yet we still have been unable to go 
through the procx»ss required to get this ofT the market. 

I just wanted to simply demonstrate to you four or five difi'erent 
examples of what we are trying to do. 

There is no rc*ason why it should be easier to get a toaster or an 
iron or a prtxluct made for adults off the market when it takes 
years, and in s<mie cases si»veral deaths, before we can set* any kind 
of action from the Federal (Jovernment in the rc«call of children's 
products*. 

I would like to welcome all of our witnesses here today. They will 
be offering a variety of perspectives on the subject of children*s 
safety. There will be an opportunity for qu^tions afterwards. We 
will be hearing from representatives of the Department of Health 
and Human Services, the Department of Agriculture, and the Mid- 
west regional office of the Consumer Product Safety Commission. 

Also represented here are the Center for the Public Interest, 
Target Stores, Puzzlebox, American TV of Madison, American 
Academy of Pediatrics, Satellite Child Care, and the University of 
Wisconsin, School of Family Resources and Consumer Services. I 
am pxirticularly pleased to have the opportunity to visit with all of 
the.se different groups representing people with very broad and dif- 
ferent f)erspectives. 

Our first panel will consist of Mary K. Ryan, Janice Durand, 
Renw Goodroad, and Bnice Edmonson. If you will come forward. 

The witnesses have already been informed that their entire 
statements \^ be made a part of the record. Therefore, we are 
hoping that you will limit your deliberate remarks to roughly 5 
minutes. 

The first witness is Mary K. Ryan, the consumer advocate for 
American TV of Madison. We are happy to have you with us. 

STATKMKXT (IF MARY K. RYAN, (DNSI MKR ADVtK'ATE, 
AMKRK AN TV AND APPIJANCES OF MADISON, Wl 

Ms. Ryan. Thank you, Senator. 

(}(xKi afternoon. My name is Mary K. Ryan. I am consumer advo- 
cate with American TV, a discount retailer of products for the 
home, headquartered in Madison, WI. I am also appearing in my 
role as a Dane County suf>ervisor repn»st*nting the IKth District of 
the city of Madison. 

My familiarity and involvement with product siifety stems from 
the tact that prior to joining American TV, I was the administrator 
of the Consumer Protection Division of the Wisconsin IX'partment 
(if Agriculture. Trade and C4>nsumer I^rotection. Prior to that I was 
X\w l)irertor of the Bureau of Compliance with the U.S. Consumer 
Pf'Kluc! Safety Commissif>n in Washinjsiton, IX'. 

AithcJUKh American TV dws not S4'll toys or prtniucts that one 
Wiujld normally characterize as intended for use by children, as a 
retailer w<» are concerned that we do everything we can to prevent 
di>lrit)Ut ion of pniducts that are ha/itrdous or that we do not 
cornpty with Federal, Sfafe or local laws. And we have in fact on 
inu (iwn initiative preverit^'d the distrihution <;f such pnklucts on 
twf) <Kraisi(His One pHnUict was a cleaning ii^ent that was mis- 
brand#-<l under Inith Fi^leral and State law We did not .sell any of 



so 



77 



the product but notified both Federal and State agencies. We also 
notified the manufacturer and advised them whom to contact at 
both the Federal and State level. The other product, through a 
quirk in the local ordinance, could be sold lerally but could not be 
used legally by the consumer. American ov^ n<A to sell the prod- 
uct and also advised the manufacturer which agencies to contract 
for direction. 

But what is significant is the fact that most retailers do not have 
someone on their staff who is technically conversant ynth proiduct 
safety laws; nor are most retailers equipped to test iwoducts for 
hidden hazards. Just as ocmsumers tend to rely on retailers, retail- 
ers have to rely on their suppliers. 

This was a problem with which we grappled when I was with the 
Commission. The Commiwion struggled in vain to find ways retail- 
ers could particiimte more effectively in identifying hazardous 
products before they r^hed the consumer but recognized the ideal 
and failsafe safety net was unachievable and that m fact most re- 
tailers were as vulnerable as amsumers. 

€k>nsequently we relied heavilv at that time on notification 
mechanisms to help tri^r retailer resptMise; to enlist their sup- 
port in recalls. We did so in full knowledge that recalls are not 
cheap; they involve manpower costs and expenses. Recalls also in- 
terrupt the normal business cycle in an iiidustry that is highly 
competitive and which works cm narrow margins. However, we 
never encountered resistance—only owperation as the need for the 
recall was understood. This was also my experience with letailerB 
when I was with the State. Retailers are close to the ctmsumer; 
they rely on repeat business generated bv trust, service, a commit- 
ment to customer satisfaction and, needier to say, a commitment 
to their safety and to the safety of their families. 

Recall notifications have another benefit To the extent they ex- 
plain the hazard, recall notices are an information tool; they com- 
municate, admittedly only on a cai^y-<»se basis, but they never- 
theless communicate product safety principles which can be used 
in making subsequent purchasing dec^ions. This is a benefit that 
should ntA be minimized. 

That is why this bill, which has bi-partisan sponsors — Senator 
Hasten of Wisconsin and Reprewntative Waxman of California— is 
so important. It will provide the kind of notification about hazard- 
ous products needed to enlist the retail industry in removing prod- 
ucts from distribution. 

But, although important, this rationale is really a very small 
part of the justification for this legislation. 

The m^r justification for the le^slation lays in the fact that 
hazards to which children aie exposed should be related in at 
least the same expeditious manner sm adult products. Under cur- 
rent law they are not. Part of the explanation for thif absurd 
anomaly can be found in history, in examining how Federal prod- 
uct safety laws evolved and in the fact that the regulatory process 
has not been able to anticipate hazards. 

Toy safety under the Federal Hazardous Substances Act pre- 
dated the U.S Consumer Product Safety Act, as did the Flammable 
Fabrics Act. These laws were designed to rely heavily on regula- 
tions to address known hazards but not to address them on a case- 



ERIC 




78 



by-case basis. Congress in its wisdom decided not to tinker with the 
statutory scheme already in place and decided that products regu- 
lated by the HSA, the FFA and the PPPA should continue to be so 
regulated, unless the CPSC had good reason to bring the hazard 
under the umbrella of the new law. However, the process of doing 
so also involves a delay in time— one that has proved to be signifi- 
cant, not through lack of commitment on the part of the Commis- 
sion, but because the wheels of the regulatory process grind slowly. 

In the case of children's products, any delay is totally unjustified. 
They are vulnerable— they are our future — they deserve our total 
and absolute protection. And that means swift action to prevent 
death, maiming and injuries. 

In recent experience, products have been introduced into the 
marketplace that could not be removed quickly under the existing 
enforcement scheme. They did not violate existing standaru? If 
they had, they could have* been removed quickly. They were, ho. 
ever, products that clearly po^ substantial hazards— a cnb 
mobile suspended by three elastic strings that strangled two chil- 
dren; headboards on cribs not addressed by the crib standard that 
had the same di.s;istrous results as the mobile; an apparently inno- 
cent and well constructed jungle gym— same result. 

The only enforcement tool available to the Commission at the 
present time is rulemaking— a totally unsatisfactory remedy. Com- 
prehensive, generic standanfe to address and anticipate hazards 
produced by ever-changing products, ever-changing product innova- 
tions are not achievable overnight and could probably never be 
adopted legally for due process reasons. Where rules have been 
adopted, they have taken years to be enacted. Let us not forget the 
bicvcle standard. Moreover, to support the rules there has to be 
testing standards which manufacturers can reproduce during the 
production cycle, portions of which are often arbitrary and there- 
fore subject to legal challenge. 

With the enactment of this bill, the Cx)mmission will be givtn the 
necessary tool to act swiftly— to act as swiftly as it can now against 
other products such as hazardous chiin saws, paint sprayers, elec- 
tric coftee pots, electric blankets, et cetera. It will not be limited to 
rulemaking to achieve its statutory mission of removing hazardous 
products from the marketplace. The public, particularly, the na- 
tion's children, can expect prompt reaction to a hazardous product 
immediately as the hazard is identified without having to wait for 
a rule and the painfully slow review process that rule-making en- 
tails. 

Therefori, on behalf of American TV, on b«;half of my constitu- 
ents in the ISih district and on behalf of Wisconsin consumers, we 
urf^e adoption \ti tliih legii.lation Surely Conm-^ l«^s no choice but 
swift enactment. 

Senator Kastkn. Thank you. very much. 

Our next witness if Ms. Janit-e Durand, who is president of Puz- 
zk box in Madison. WI. Janice, thank you very much. 

ST.Vf KMKNT OV JAM< K R. IH RAM), PRKSIDK.VT. PI ZZLKB(»X 

Ms UURANU My name is Janice Durand. I am president of the 
PuzzU-kKix. Inc.. a 'eompan> operating two sp<H:ialty toy stores, one 



ERJC S2 



79 



here in Madison and one in Milwaukee. I am here to testify in 
favor of S. 2650, the Toy Safety Act. 

The Pu2zIebox operates in a relative niche in the American toy 
retail market. We specialize in the sale of toys of high quality 
desij^, manufacture, and materials. Most of our toys come from 
importers who bring in products from all over the world. Another 
large segment of our stock comes from small American companies. 
Part of what we sell at our stores is the assurance that any toy on 
our shelves is safe. To a large extent we are forced to rely on the 
integrity and intelligei|ce of our suppliers. 

For instance, there is no way short of eating it and waiting for 
the results to know if a paint is nontoxic. Also, the best of our 
manufacturers and importers practice voluntary recall as it is in 
their best interest to get an unsafe toy off the shelves. 

To a larger extent, however, we find it necessary to rely on our 
own criteria for determining if a tov is safe. We have pulled eyes 
out of stuffed animals, broken wooden rattles in half, stepped on 
plastic rattles to determinme the strength of the plastic, and con- 
sidered the size and small mobility of plastic pellets in a so^lled 
Vanbag before rejecting it and sending it back to the company, but 
'^nding a bad toy to the company is as far as we can go. 

What we do not have at present is a system of notification so 
.iiat we can get an unsafe toy off the shelves quickly. It is my un- 
derstanding that this bill would create such a system. The law will 
provide the Product Safety Commission as the ultimate screener. 
Our store could send what we consider an unsafe toy to the Com- 
mission who, upon satisfying itself that the toy is indeed unsafe, 
would be empowered to recall it. 

I would also like to sp^k to a related matter; that is, age guide- 
lines on packaging. Tliere is simply no protection for a child when 
an adult buys a tov that is unsafe because it is unsuitable for ti^ 
child's age. Our salespeople routinely and frequently suggest alter- 
native selections to customers who nave chosen an unappropriate 
toy. For instance, something with small sharp parts for an infant, a 
windup toy that is perfect for a 6 year old, could be a disrater for a 
small child still at the stage where everything b jammed in the 
mouth. Not everything in the store, however, can provide this serv- 
ice, and the weary aunt or uncle buying a gifl for a young relative 
may inadvertently give the child an unsafe toy. 

Many responsible manufacturers are now labeling, and the clear- 
est label reads, "Not suitable for children under three." There are 
probably a lot of ways to do this, but I think I would like just to 
step outside my written testimony at this time to say that the more 
deinil you can go into sp^fcifying the age guidelines for a child, the 
better off you are. However, I think that clarity is really impor- 
tant, and that is something to be said for formula, not suitable for 
children under three. 

I think universal labeling wiU prevent n^dless accidents and 
give the consumer confidence and assMrance that he is buying the 
child, not only a fun toy, but a safe one. Thank you. 

Senator Kasten. Janice, thank you vei^ much. We had a series 
of hearings on this subiect here m Madison and also Milwuakee 
WI, and earlier in Washington DC. Both you and Ka> have men- 
tioned this whole age question. Although age labeling isn't a part 



ERIC 




80 



of this bill. I think it's clearly something that people are concerned 
about. I am quite interested, myself. 

Ms. DuRAND. It's something that comes up every day in our 

store. I • J r 

Senator Kastkn. Your question of wordmg Ls the same kmci ot 
question we are now dealing with in putting health warnings on 
cigarettes— questions as to how that should be done, which way, 
shape and form etc. I thank you for your testimony. 

Our next witness on this panel is Ranee Goodroad, the director 
of Satellite Child Care. Ranee, thank you for joining us. 

STATEMENT OF RANEE M. COODROAl), DIRECTOR, SATELLITE 

CHILD CARE, INC. 

Ms. G<K)UKOAD. The perspective of this testimony is from that of 
child care, and more specifically, family day care which is child 
care in the home of an individual provider. 

The department of health, social services, division of health, esti- 
mates that there are currently 47,567 children served by licensed 
day care alone in the State of Wisconsin. It is estimated that there 
is a total of 100,000 children in some type of child care arrange- 
ment in this state. It is also estimated that there are between 1,000 
and ;i,(KK) individuals doing child care who do not need to be regu- 
lated becaus*" they care for 3 or fewer children. In Dane County 
alone there are approximately 80 State licensed homes, 200 r^s- 
tered homes, and in Madison there are 65 city certified homes. 

Agencies which r^ulate child care are: State licensing, county 
certification, and Dane Ck)uinty registration, and in Madison, city 
certification. With the exception of city certification, the regulatory 
agencies visit each home either annually or on a spot-check basis. 
Even in the family day care system where we visit each home 
every 6 to S weeks, it is very difficult for us to go through each 
individual toy, since there are several things observed and done in 
the course of each visit. It is virtually impossible to inspect each 
toy and article intended for use by children. Even if this were feasi- 
ble, it would be entirely possible to overlook a hazardous item. 
Agencies such as these regulatory ones need to rely on other agen- 
cies to provide the particular type of service. In addition, there are 
a number of providers who are unregulated and who do not come 
in contact with any regulatory agencies. In all of the rules which 
are established for child care, the base line Ls the safety of each 
child. Ik'yond that we work toward maximizing each child s physi- 
cal, cognitive, emotional and social development. 

In summary, I would like to make the following points: One, 
laniily day care providers are self-employed business people who 
provide a service in their own homes. It is vital that the tools of 
their trade be as safe as possible to reduce the possibility of injury 
to a child in their care. 

Two. there is a need for a national list of one or two contact 
agencies in each state which can be contacted regarding product 
siifety. These agencies, such as 4 C in Dane County and 4-C in Mil- 
waukee, could then disseminate the information through channels 
such as newsletters. 



« 84 

ERIC " * 



81 



Three, given the amount of time and cost omtinually being in- 
vested in making and enforcing child care regulations to ensure 
safety, it would only follow that unsafe toys and articles be re- 
moved from the market as quickly as pebble. 

On behalf of the child care communities, I would like to thank 
you for introducing this bill for Congr^. 

Senator Kasten. Thank you. Ranee, for your testimony here 
today. 

Our next witness is Dr. Bruce Edmonson, Department of Pediat- 
rics at the University of Wisconsin Hospital here in Madison. 

We are particularly happy to have you working with all of us. 
Please go forward in your testimony. Dr. Bruce Edmonson. 

STATEMENT OP DR. M. BRUCE EDMONSON, DEPARTMENT OF 
PEDIATRICS, UNIVERSITY OF WISCONSIN HOSPITAL 

Dr. Edmonson. Thank you. 

Senator Kasten, I wanted to take the opportunity today to pri- 
marily ask a qu^ion of you and to see if we can discover whether 
the legislative and regulatory laws at this point are adequate to 
meet a whole host of needs in the area of child ii\|ury. 

Let me say at the outset that I certainly support the bill, but I 
want to take the opportunity to ask whether the legislative envi- 
ronment and the regulatory environment is such that there aren't 
a lot of loopholes as there were in this area in general of child 
safety, and let me give a little bit of history and then ask whether 
you think we are doing as well as we can in- these particular areas. 

The history that I want to brings up is the Poison Prevention 
Packaging Act of 1970, which is, a& I understand it, administered 
by the Consumer Product Safety Commission and has a number of 
regulations that have been enacted since that bill was pa£»ed in 



It is abundantly clear from research that has been ione in the 
mid-seventies to late seventies that this Act has been very effective 
in preventing ingestions and very effective in preventing mrious in- 
juries, and in (mrticular, I will just ^ve a couple eKamjpTes. 

One in particular is the dramatic decline in death and iiyury 
from aspirin use. You probably are aware that through the efforts 
of both industry and Government there was a dramatic decrease in 
the incidence of aspirin ingesuons for two reasons: 

Primarily, the number of baby aspirin pills that were allowed in 
a bottle was decreased so if ingestion occurred, it was less likely to 
be serious. 

Second, probably most importantly, childproof caps were used. 
And good data shows that that legislation has been very effective. 

Another area that was impacted by that law was also the effect 
of lye ingestion and particularly drain cleaners such as Drano and 
Liquid Plumber. 

I am convinced from reading the research and the followup of 
this Act that it was extremely effective in decreasing incidence of 
use of these poisons. 

Now, what I want to bring up today or take the opportunity to 
do is ask you whether we are doing a very good job in some related 
areas. 



1970. 




ERIC 



82 

For example, I mentioned^that baby aspirin ingestions have been 
dramatically decreased, and yet it is possible for any of us to walk 
into our neighborhood drugstore and buy a large bottle of adult as- 
pirin without any kind of childproof cap on it. 

As a matter of fact, 1 did this accidentally the other day and no- 
ticed a very tiny, little label on the corner of the box and didn't 
even realize what I purchased until I got home. 

The law, as I understand it, allows an exception there, and I 
don't know why. I understand that some elderly folks have trouble 
operating these caps, but I wonder if there would be a mechanism 
whereby pharmacists could apply a certain kind of cap if it is spe- 
cifically requested by a (mtient rather than allowing very large vol- 
umes of this product on the market. 

While there is tremendous success of that act initially, I wonder 
if it has been followed up properly. 

Another one is some work that I have done here in Wisconsin 
and that has been regarding drain cleaners. Drano ingestions are 
very rare these days, again because of adequate packaging and ade^ 
quate reduction of strength of the product, but what we found in 
Wisconsin is that there is an ongoing and ^lot decreasing incidence 
of lye ingestion in dairy farms, and they are using prcducts that 
would never have been permitted on shelves and are not permitted 
on the shelf of any grocery store or hardware store. And because it 
is non-regulated, then it escape any r^ulation by the Govern- 
ment, 

So, these products which were literally banned as of the early 
seventies are widely available now on any dairy farm in the State. 
Those products are used twice a day, and I have an article with me 
to be published shortly, documenting the extent of injury from this 
very dangerous product. 

Another point that I want to bring up is about the reversible cap. 
The cap is widely used in drugstores where the cap can be flipped 
over, and therefore, made nonchildproof. It ii, quite popular, again I 
suspect for some elderly folks. 

We continue to see ingestions due to that particular package be- 
cause p€*opte simply flip the cap over, and at least in several situa- 
tions that 1 have been aware of, the adult uses the drug and had no 
particular reason to bypass the childproof cap other than for 
simple convetiience. Again, I wonder if the r^fulation of these caps 
is adequate. 

One final thing I want to mention as another example, as, I 
guess what I see as a loophole, is the question about pacifiers. I 
think you are aware from the example there of toys that are hung 
by strings, that strings can be easily wrapped around the neck and 
the child can be hung. 

It has hoen recognized by pediatricians for years^-in fact, there 
are articles in the pediatric literature showing that children have 
lx*en strangled by pacifiers that have been hung around the neck of 
a child with a string. That practice continues to be practiced, and a 
number of the pacifiers that are in the market have a design which 
allows very easy attachment of strings. 

One of the most {X)putar ones have two little holes on the side. It 
looks kind of interesting, I don't know if that is a breathing hole or 




83 



what. I suspect it is designed for attachment of the string, so those 
are just sor e examples that I wanted to give. 

I guess I am wondering whether the legislation and the r^ulato- 
ry environment hm an adequate mandate or adequate authority to 
addrew all these various issues or are we d^ing here with piece^ 
meal legislation? Are we chasing after each risk as it occurs or 
does t!ie Consumer Product Safety Commission have authority to 
d^ with all the ii^ues Uiat I raised? 

Senator Kasten. Let me first of all say this hearing was intended 
to cover the scope of the Toy Safety Act and not this broader mnge 
of topics, but I very much s^predate your bringing up some of 
these questions. As you see, there is a court reporter present. This 
is an ofTicial hearing of the Sraate Commerce Committee and the 
minutes of this meeting will be {Hiblished. Your suggestions will be 
among those that will appear in the official hc^ng record. 

Let me just, if I can, respond because I have been on both sides 
of the safety cap issue, as chairman of the Consumer Committee. 
Frankly, there have been at least as many people representing eld- 
erly groups who have been complaining norticularly about that one 
cap where you had to matchujp the notches. You turn it around in 
order to get the first arrow pomting right at the second arrow and 
then you have to snap off the top, A number of people complained 
about that. They didn't understand it In fact many people were 
just taking the cap off once and then letting the aspirin sit without 
any cap at all. Of course, that is worse than anything. 

With regard to the cap that can be changed to be either child- 
proof or not, the manufacturer, I believe, is in Chattanooga, TN. 
There is a Consumer Product Safetv Commission study going on 
right now with respect to that, and there are a number of different 
ways we might go. We mi^t leave the cap to go either way, which 
would mean that you, as a grandparent, could leave it turned your 
way during the week and then switch it when your grandchildren 
come home for the weekend. Another option would allow you to 
tell your pharmacist whether you want to childproof the cap or 
not* You ttien destroy the other side of the <^p allowing it to work 
only one way. 

'mose are the alternatives that are being discussed and consid- 
ered. The Consumer Product Safety Commission is in the process of 
a full investigation into this. For one thii^, we have got problems 
with packagifi^ for the pharmacist. (H>viously, if he has got all 
these different sizes of bottles; he has to have all of these different 
sizes of caps. Going a step further, he would next have to stock all 
different sizes of both childproof and non-childproof caps. We are 
trying to work out ways we can provide the option and yet still be 
able to keep people in the prc^ram. With regard to the aspirin ex- 
ample that you used, the law says that each manufacturer can 
make one size without a childproof c^p That is what the law says. 
The manufacturers pick their size. 

Now, you can look at that as a loophole from the viewpoint of an 
expert or pediatrician who is cmicemed about child safety. Howev- 
ert there are other people who would testify on a different day 
saying they would like more ofHions because everybody is making 
only the larger size, in order to «tse the nonnrhild-proof cap. That is 
something we ought to consider and look at. 



ERIC 




84 



I think in gc*neral with rc*sponse to your overall question, the law 
is something that is ev. )ving. What we found really is a change, 
not in the law, but a change in the recall proce^. Because of acci* 
dents and deaths, and some of the things we showed you here 
today, we discovered that it was easier to recall a defective toaster 
than it was to recall a defective crib. What we decided to do is 
remedy that problem so that the recall proce^ can be expedited. 

We are having these hearings in order to develop a stronger 
public awareness of the issue and also, frankly, because I want to 
enact legislation this summer before next Christmas. I want to 
have this whole proc^ in place for the r^latory bodies before we 
get into the Christmas selling season. That means we need to have 
the Senate and the House of Representatives pass the bill in early 
August, giving the President time to sign the bill and leaving Sep- 
tembt»r and (X'tober for the Consumer Product Safety Commission 
to work with representatives of the various toy industries, some of 
whom are represented here today. If we can hold to that schedule, 
we'll have the recall process in place by the upcoming Christmas 
season. 

I appreciate the points you have raised and particularly on one 
or two of them, we will be continuing to work with you and others. 
We are all interested in the same goal, but as I say, on this child- 
proof cap business, it is one that cuts all sorts of different ways, 
depending on which groups you are talking to. 

lx*t me say once again say to all of you, thank you for your testi- 
mony. There are some questions that we may submit to you and 
ask that you get back to us in writing. It is a hot day and a warm 
room and we have got two other panels to follow, so I think rather 
than go through lots of questions right now, we will dismiss panel 
No. 1 and thank them once again. 

The next panel is Dr. Nichol, Ms. Wickstrom and Dr, Ackerman. 

Our first witness is Dr. Kathryn P. Nichol from the Dean Medi- 
cal Center, Madison, Wl. Dr. Nichol. 

STATK.MKNT 0¥ ttfL KATHRYN P. NU HOL, DEAN MEWK'AL 
CENTER. MADISON, WI 

Dr. Nu iioi.. Thank you. It is nice to be here. I am here primarily, 
I think, as the representative for the Wisconsin chapter of the 
academy and have done so for a number of yeara. When I was con- 
ti L'ted bv your Wiushington Office, I said it was a wonderful idea to 
have the Toy Safety Act and get it passed, but my primary interest 
and my primary thrust has been in car seat, not accident, and I am 
sure that you are aware that that in hict is the biggest killer of 
children far, far excei^ls it than toys ever do to our youngsters. So 
then I was asked if I would just briefly present what h is bt*en hap- 
pfning in Wisconsin lK*causc* we have a lot to be proud of, but we 
haive a hing way to go. 

Primarily I have been involved in instituting the infant car .seat 
programs in Madison and around the State, ixlucational loimer pro- 
urams which (Kxur— many of them occurrcnl before the pas:;age of 
the State legislation, the car seat legislaiiun, and I think the 
reason I am sitting here is because thert* are a few sliders that can 
depict ^x•tter than I can where we are. That is a map of Wisconsin, 



88 



85 



and each dot on that map represents a hospital which has deliv- 
eries. We have about 73,000 deliveries a year in the State of Wis- 
consin. 

The next slide shows where we were last year and about this 
time of the year in June following the survey. Each red dot repre- 
sents a hc^pital that has an infant car seat program in place so 
that mothers that are delivering babies at a hospital can go home 
from the hospital and put their child in an infant car seat. All 
these prc^rams are hospitaI4iased educational loaner programs* 
That means that about 73 peiwnt of women delivering in the State 
of Wisconsin last year had an opportunity to get involved in those 
pn^rams and about 37 percent who have been offered that pro- 
gram have already participated. We have had over 21,000 parents 
of youngsters statewide last year who had taken advantage of such 
a prc^ram. 

This slide shows the blue dcrts are prc^rams that last year were 
planning instituting such a program, and the yellow dots indicate 
communities that had in their hospitals some program available. 
Sometimes they were selling the car seats or they did not have an 
educational component, but they were offering tl^ir patients some- 
thing. As you can see, there are only three white dots with noth- 
ing. 

So, we have done a marvelous job on accomplishing something 
for our infants. Unfortunately, the data shows that in^t car seat 
usage dramatically, or car seat usage dramatically drops after the 
infant stage due to a survey in Wisconsin and Madison and basical- 
ly we saw the same thing. Before we started our infant car seat 
program, 28 percent of youngsters were in car seats or infants 
Here. That rose to GS percent after we started our program. Howev- 
er, we did nothing to <3ir seat usage in toddlers, et cetera, which 
was a stimulus for starting a car seat program in I^e County. At 
the time it was the only fee for service claim in the TOuntry for 
doing such a thing. Now, as everybody else has started an HMO, 
we can no longer take a risk for the service claim. We have also 
gone to a countywide program. We have u^ the same format for 
becoming an educational Icmner program and it was started in 
June of 1982. Two years down the pike we have loaned over 1,100 
toddler car seats. The exciting thing about this is that Ernie 
Hooney, a real advocate for children, and njroelf have been work- 
ing statewide. Basically this shows where Dane County was last 
year. We have been able to start pn^frams around the State, tod- 
dler programs around the State. Tliese are programs that will ac- 
commodate children in car seats up to age 4 so that we &re making 
it possible for parents to comply with the State law, at least in 
these counties, on a fairly economical basis. 

As you can see, we have a very long way to go before we really 
complete this pnx^ss, and 1 would certainly tnink that there is 
going to be a lot of deaths still occurring in cars because of a lack 
of car seats and because of a lack of their being used correctly. 

The other prc^am I just wanted to briefly mention was a pro- 
gram that we have just instituted as of May which was aimed at 
teenage drivers who are arinking, and it is called an Ail-^fe Pro- 
gram. Basically it has been nmning for 9 weekends, and we have 
had about 45 riders with better than 95 — I am sorry, 40-some calls 



ERIC 




86 

where there have been 95 riders and we have seemed to have 
struck the population that we wanted to, which is the younger 
person who Ls the passenger, the young teenager, young passengers 
with the Inebriated driver who needs a ride home. We see this, 
again, as a new program, as a potential model to be used around 
the State. If you look at that, there looks like in 1982 there was 
so. ething like 11,000 car accidents which probably involved teen- 
agers who were inebriated. So, this is a really big number of deaths 
and a really big problem. I would like to congratulate your efforts 
for toy safety, but I would like you not to forget our children in 
cars. 

Senator Kasten. Dr. Nichol, thank you very much. 

Our next witness is Jane Wikstrom, who is the director of con- 
sumer and public relations for Target Stores, from Minneapolis, 
MN. First of all, we thank you for traveling to Madison, WI, and 
we look forward to your testimony. 

STATEMENT OF JANE A. WIKSTROM, niREiTTOR OF CONSUMER 
AND PUBLIC REIJ^TIONS, TARGET STORES 

Ms. Wikstrom. Thank you very much. 

It is a real pleasure to be asked to come and testify before you. 
Senator Kasten. 

Let me just preface my comments by saying that I am not here 
to make Target nor Senator Kasten nor the CI^ look either good 
or bad, but rather to just present the facts in the interest of prod- 
uct safety and, more specifically, toy safety in the marketplace. 

My name is Jane Wikstrom. I am director of consumer and 
public relations for Target Stores and I have responsibility for the 
companywide operation for customer research, consumer service 
and Target's quality control, product safety and public relations. 

Target is a $3.5 billion company and we serve over 100 million 
customers every single year. For those of you from Madison, you 
may not recognize TaiTget unlera ymi travel to Milwaukee or one of 
our other communities, you may recognize us as a 1 1 vision of the 
Dayton-Hudson Corp,, who is best known for its representation for 
bcnng a community- and consumer-minded corporation. 1 think 
Target, as the largest operating division of the Dayton-Hudson 
Corp., has learned this philosophy very well. We are vt-ry pro 
safety. We are pro-consumer and we are certainly pro-Consumer 
Product Safety Commission. We have always thought that those 
thrt*e audiences were synonymous with one another and have «fl^^ 
ported that, both internally with the management of Target and 
the Dayton-Hudson Corp., as well its externally. And, we have been 
fortunate enough to be applauded by the C;k>nsumer Product Siifety 
C^ommission for our efforts. 

Target s toy safety pn^ram began in 1974, since that time and 
over the last 10 years, we have ti^t<'d over 4(),(MH) different toys. In 
addition to that, we tested another ir^MKMJ toys, which I am going 
to talk more about in just a few minutes. Of those 40,(MK) toys we 
testwl, we experienced about a r^pt-rcent failure rate of all thos<* 
tovs, and when a toy failini for soniethinK tike sharp edge«, sharp 
points, or small objects, wr followed the pres4;rib<-d proi-^*dur«» of the 




87 

CPSC and reported the findings to the CPfX, filujg the 15-B 
report. 

Why I am here today is really to demonstrate our support for the 
CPSC, to specifically demonstrate our support for 2650, and I think 
nuwt specifically and perhaps most importantly, to share our con- 
cerns about the current operation of the CPSC, which I think will 
bring to light the importance of the need for this new bill. 

I mentioned the 32 toys that had failed in our testing program 
over the last 2 years; failed to meet Federal requuements for safety 
by the CPSC's own definition. In not 1 of those 32 cases have we 
ever had a national recall, nor have we ever heard back firom the 
CPSC on the current position those 32 failed toys. In addition, 
and I think it certainly correlates with that, is *^at what we liave 
here is a company who is willing to take private initiatives on toy 
safety. But those initiatives are limited to the retmler doing the 
testing when in fact those benefits amid be realized nationmiy. I 
think, too, from Target's standpoint when that happens, wlK;n we 
end up identifying problems, recalling a toy, and K-Mart next door 
or another retailer down the street from us does not recall it be- 
cause they don't have the same program or because the CPSC 
doesn't take action, we aro at an «x>nomic and competitive disad- 
vantage. 

In the past, as 1 indicated earlier, we had really supported the 
CPSC and we continue to support them internally. However, I 
must say it is becoming increaungly more difHcuIt to ttefend the 
CPSC when the quality control deportment is taking firm action 
internally with management, buyers, and externally with our ven- 
dors saying we must comply with the CPSC and then have nothing 
happen for years at a time. It's also frustrating along those same 
lines for us to follow the prescribed prwedures of reporting within 
24 hours, identifying the defect, maki^gsure that we file the letter, 
notifying the manufwiturer and the Cl^ and then to have noth- 
ing happen. Personally that is very frustrating. 

Here's a good example that will really^ring this to light. In late 
1981 we identified a stuffed animal th^ had a small parts hazard. 
The eyes came off. We reported it to the CPSC and to the manufac- 
turer and we were, of course, anximis to move on this because this 
was a toy that was planned for the following Easter season. We 
had a million dollars worth of the inventory that we were sitting 
on. We were between a rock and a hard place because the manu- 
facturer was saying "we don't support your flndiiigs." On the otlwr 
hand, we knew enoi^h about tov safety to know it wasn't in com- 

giiance and we didn t feel comfortable wiling it. So, we told the 
"PSC that we would inspect each of thow 150,000 toys. Each eye 
and nose on every single toy was tested. We found a 7.5-pe«»nt 
failure rate. Six months later, well past the Easter sea£»n, we did 
get a report back from the CPSC which supported our own findings 
saying that they had also identified a 7.8-percent failure rate, but 
they took no position on it; there was never a recall. And, quite 
honestly, our feeling was at that time when we most needed a part- 
ner in the CPSC, we didn't get it. 

1 think that there is di^nsion at the public level as well be- 
cause I think even though many consumers, many taxpayers, if 
they were to be surveyed, would be not so much pn^ovemment 



ERIC 



91 



88 

interaction, I do think they believe that somebody Ls out there pro- 
tt^cting them and looking after their best interests as it relates to 
safety of products. And, certainly a commission with a name Con- 
sumer Product Safety Commission better be looking after consumer 
product safety or I, as Jane Wikstrom, taxpayer, want to know 
what my money is going for. 

I think the dissension is occurring at the corporate level for 
things I mentioned earlier like when Target complies with the 
standards prescribed by the CPSC, but the CPSC doesn't follow up. 
Put yourself in the position of our president, Senator Kasten. If 
you were the president of Target Stores, at some point in time you 
say, * should we really be spending these thousands of dollars every 
single year to test toys and recall them when nothing is happening 
with the information and the retailer down the street is not doing 
anything about it either?" 

In summary, I would like to say that I do think the CPSC is a 
very needed organization. I don't think that most companies are 
going to comply with voluntary standards. I think we need the 
Government interaction as it relates to product safety. I think the 
CI^' has to stop riding the fence on toy safety. I think they need 
to improve their credibility, both with corporations and certainly 
with the public at large, rinally, I would say that 2650 should be 
written, not only to allow the CPSC to take faster action on toy re- 
calls, but m fact should require it. Thank you. 

Senator Kasten. Thank you very much. One of the problems we 
go back and forth on and one of the areas that we talked about ear- 
lier and have addressed in a broader concept than just toys is this 
whole issue of what some manufacturers would call trial by press 
release. This occurs when an announcement is made that some- 
thing is unsafe or may be unsafe when in fact the testing pnKre- 
dures may have been faulty or whatever. M^nwhile. the press re- 
lease Ls goi ig back and forth effecting what happens in the market- 
place. The Consumer Product Safety Commission has always strug- 
gled to get a balance? between the media and the kinds of recalls 
that you are talking about. In fact, they have been quite fair and 
haven't gone out with a statement if there isn't a strong purpose 
for it. 

I appreciate your comment^s. Most of what you said goes wyond 
our Toy Safety Act that we are working on right here, but there 
are some ideas that we can pursue. 

[The statement follows:) 

STATfc:M^:NT or Jank A Wiehthom, Dirk<t<>k, Consumer ano K'»uf Rklations. 

Takgkt Sto»>» 

By way uf background, Target Ston*s m: An upscale di^cuunt df partnieni store ; a 
division of the I>ayton Hudson Corporation; has annual salt's of approximately 5 
billion, operatoji* 2\ \ stort^ m tl statei*: serv*^ about UK) million customers a year; 
Target's merchandise mix connists of two-thirds convenience oriented Imrdlines and 
om-third mid range fashion family wearing apparel and Hhoe»; Target '» hmxK oper- 
ating pbiI<j4iOphy IS to offer cnwtomer^ quality iTterchandise at low priceei in a clean, 
ejwy to shop environment Everything «old by Target backed by an unconditional 

^^^TaVgH and ^ Safety In WIA Target embarki^d upon a Toy Safety Pn>gram that 
entailH extensive testing on all toys prior to their delivery to Ta'-get Stores While 
changes and impfoyement.s have Iw^n made to the pn#:ram over the years, it has 
basically remained intact 



er|c '^2 



89 



Here's how our Toy Safety progmro worka: When Tftjnget decides to purchase a 
particutar to^ our buyer ii^tnKrts the manufacturer to send two sampJes to an inde^ 
pendent testing lab under contract with Taiyet. Hie toys are subjected to appropri- 
ate tests to assure compliance with both FMferal Itepilaticms and Voluntary Skand- 
ante <PS 7276?. 

If a toy fails (depending on the nature of tl^ ddect) we may elect to t^ 12 addi- 
tional samples. Hie results of those te^ help us determine our course of action. 

Keep in mind all of this t^ing is to be conducted before we buv a toy or offer it 
for sale in our stores. That crfmouBly makes the most seme. In 19H3 we tested 4,4:10 
toys. 4% ( 1861 of those failed and were dtminated from our ^ortroeitt. 

However, as you m^t mispect the procedure sm't perfect. Sometimes we discover 
an untested uiy has been diiipped bf a vewktr. Or^ on oocasicHi we will discover 
through a customer or through our retest j^ogram tiMt a toy in our asrortment has 
a problem. In those cases— wlm we haw scM t<m that turn out to have a defect— 
we follow the Cl*^ procedures for reportii^ defective tc^ And, most importantlv 
we immediately recall the toys from our stores and warehows and cancel all 
future orders. 

In the past two years ^2 toys have fallen into that category . . . they failed to meet 
regulations, they wetv reported to the CPSC ami they were voluntarily recalled 
from our stores immediately. 

Now the kicker? To our knowledge, in not me the 32 ci^ has any action taken 
place. The most follow-up we received was a letter ffxwn tiw CPSC saying "Tlmnks- 
we'll pursue it/* 

My concerns and thus my re^on for supporting the amendment to FIISA are 
these: 

1. With the extensive amount of testing we do (about r^(KH) toys a year> from vary- 
ing resources, we have yet to see one of our "defective" toys recalled nationally So. 
the benefit of our testing program m limited to Tally's ctbstomers when it could be 
spread nationally. 

2. When Target is the <mly one to take action (recall) we are, in effect, put at an 
economic and competitive disadvantage. 

3 Quite frankly while I think we are dmng the right thing ethically by testing 
toys for safety, it is becoming increami^ly more difficult to defend this very costly 
program internally when no action is taken by the CPSC externally. Management 
could conclude that the defects are twi significant entmgh to be considered hazards 
by the CPSC ^because managemmt minr not really understand that the (.^PSC m the 
one that sets these standards in the first placed and thus queatton the credibility 
and viatMllty of our pro^gram. 

4 One of our biggest ctmcems is it is just plain frustrating to work as hard as we 
have to be in compliance (testing, follow up with vendore, notifying the CPSC within 
24 hours, recalling, etc.^ and tlKen have years pass before* anything happens with 
this information 

Let me share an example that will help bringthls concern to li^t. 

In late 1981 we tested several styles m a buffed animal and d&scovered prcAlems: 
a small object hazard was identified with the eyes and noses. 

We reported our findings to the manufacturer and tl^ CI^SC, The manufacturer 
did not agree with our findings and refilled to take b^k the toys they had shipped. 
So, we were sitfinu on $1 million worth oC inventory. 

Af* the toy was planned to be a big EMer seller^ we didn*t have much time to sit 
idle. We notified the CPSC that we would climck the eyes and nos«' on every toy and 
only ttio^e that passed the tests would be sold. The manufacturer reluctantly 
agrt^— of cemnie all the testing and all the other expense would be bijme by 
Target. 

We proceeded to consolidate 150,000 stuffed animals from 147 stfires. We flew in 
initpectors, trained testers and developed a reporting procedure it took ikiy% and 
hterally thou^nds of dollars to compieie the inspection process. Afler the I^t TtO^CHK) 
toya we had a failure rate of 7.8%. 

The (!l^.* Hi'nt a report six months later their findings; they luul a 7,5% failure 
rate on 1-12 samples, Our repeated cnJIs to the CPSC to find out their position re- 
garding their findings left us with no information. We felt we had no support from 
the CVSC. And there wati never a recall on the product other than Target s own In 
effect, we looked f<H>li«h. We spent thousands of ikrflars and a lot of ttttM*^ — to what 
avail? 

While It's tru** we prevented potenttsi problems with our own cust^nnen*, custom 
ers of oihirv retailers did nc^ receive the amount of prott^ion they could have/ 
.should ha^ e from the CPS<!. Who would have been liable if there had been an 
injury'' 



ERIC 




My fH>nt**»t !W*hn^' about that whole incident-- having fullcrvml thi» prmTibed p^c^ 
cedurw io Iho letUT- ih what doe» it take fur the Cl^^ to take a pojition? Eveti a 
(KiHttion tx>ntrar>' to our own «rould have been welcome. I inuppi^ if there had been 
a death M?me m'tion might have ensued. But I ihouKht the CPSC wa» preventing 
serious prabjenu»» not r^ictin^ to them. 

5 And fmally. I think the bigK^t concern of all ih perhaptf tl^ dc?ception that is 
(Kfurrtn^ The public may not he pro government mteraction in general, but when 
it comets to safety the public ftrmiy beheve* someone is looking after their best in- 
terests And. a Federal government Commi^^on with a name like the C^isumer 
Product J'ii^fety Oimmission better be looking after the safety of consumer products. 
Otherwise, I (as Joe consumer) want to know what my tax dollar's are bring spent 
for at the CPS<: 

Not only is there deception at the public level, but perhaps "t the corporate level 
as well 

If the C?PS(? isn't complying with their own standards of safety for toys, then we 
as a comfiany have to ask ourwives why does the regulation exist? 

If Targt't ends up pulling a wy from the shelves because it doesn't meet Federal 
regulations and then ttw? (3*SC fails to recogni^ the non-complying toy as a hazard 
(by their own defmitionl where does that leave Target? 

Ironically, rather (han helping our customers we are hurting them because the 
costs of telling and recalling are {Mssed along to the Target ctistomer in the form of 
higher prices. 

I ask you, if you were the President of Target would that make sense to you? 

In summary, I think tlw? CPSC is a needed organization. I don't ihiak all compa- 
ntvH are as irood at self audi^ regarding safety as Target is. t think tl^ Federal 
St:indardN for toy safety are good. I also think some of the Voluntary Standards 
should become Federal requirements. But the CPS(.^ has got to have* the clout and 
the resources to take action— quickly. 

If the Toy Safety Act of \W4 is a means to that end, then I say it s too bad it 
wasn't proposed earlier. In the interef^ of the credibility of the CPS(.\ and in the 
puhlu' interest I say let's move now. 

S<?natur Kasten. Our next witness on this panel is Dr. Norleen 
Ackerman, who is the former assistant professor of the School of 
Family Resources and Consumer Sciences from University of Wis- 
consin, Madison. 

STATKMKNT OF DR Ncmi.EKN M, ACKER,M[AN\ FOKMKK ASSIST- 
ANT PROFESSOR, Si H<K>L OF FAMSI,Y RKSOt R< KS AND < ON^ 
srMKR S( IKNCES 

Dr. AcKFJiMAN. Thank you. It is very nice to be here today, f 
have been teaching a consumer legislation course to both our con- 
sumer science majors and to other students who are interested in 
that topic for the past 7 years in the University of Wisconsin, 
Sch(K)I of Family Resources and Consumer Sciences. We have, in 
that course, studied the Cx)nsumer Product Safety Commission. We 
have tulkcni about consumer product safety in general and product 
recalls, and so it is inten*sting to hi* here with the others on this 
pane! 

As we hxjk at the i^ws in the product safety are; , toy safety was 
one of the earlier i.ssues addressed by (ingress in IIMK} and 1909, so 
toy safety laws were around before the Consumer Product Sxifety 
Commi.sHion. As Kay Ryan hiis already mentionc»d, there are a 
number of laws that have addressed product safety. These were 
sp<*iinc uctH on very limited Issutns at different points in time. We 
drvi'ifiptHj a patchwork of laws that cover individual topics with dif- 
ferent definitions of safety and different recall provisions. That's 
how the "legislative quirk*\ or "historical accident" happened; so 
the trjy procedure for recalls was slower than wa^* the procedure* for 
adult p?-oducts. It's <me of those things that does hap|H*n and needs 



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91 



to be addressed. I am happy to see that this problem has been iden- 
tified and that S. ^50 is being propoe^ to speed the recall process 
for toys and to make the standardb the same as they are for adult 
products. Patchwork legislation has been a prc4>lem in many laws 
over the 3rears. 

So Vm here to support The Toy Safety Act of 1984— S. 265a~or 
greater protection of children for two reasons. Firsts it speeds the 
recall process and, therefore* will prefect children more than the 
old standard has. Second, one of the things that I found in teaching 
is that a patchwork of laws makes it so mudti more confusing to 
teach, for students to learn, and for the law to be enforced. So to 
move from different standards— and in this caoe rom children 
being less protected than adults— to a simple uniform procedure for 
both adults and children will be more unNderstandable for those of 
us who are educators to te^, easier to enforce, and more readily 
understood by retailers and other groups who are concerned by the 
matter. So, I favor tlw nK>ve to a netter standard and also a more 
uniform standard. 

rd like to pick up on something else: the whole area of recalls. 
The average succew rate of recalls— that is, the percentage of the 
recalled items that were manufactured and sold— that have equal- 
ly been replaced or repaired— usually is about 50 percent. The suc- 
cess rate of recalls vanes all tl^ way down to lex than f^ve percent 
and up to more than above 75 percent If there are current actions 
going on at the CPSC to improve the success rate of recall proce- 
dures, I am not aware of them. 

This law improves the procedure for recalls, but it doesn't ensure 
tl.at more unsafe products come bock. So 1 question, are there some 
ways that we can make that recall procedure work better than it 
do^ now? 

Tl^ last thing I have on my list here is that I would like to com- 
ment on something Dr. Edmonson said. He inadvertently picked up 
a package of aspirin which didn't have a safety cap on it. Now, 
there are people who have trouble opening these safety cap bottles. 
In fact, I took some of those safety caps to class to have college stu- 
dents try to open them. Some students say it's easy, but they are 
opening the reversible caps put <m the easy way. The problem with 
the over-the-counter products is that many of us don't stop to think 
abof r^cly caps, at least not until we get home and take the cap 
off i Mile- if there were a way for those packages to clearly 
alert t. shopper as they are buying that this is the size that 
doesn't have the safety ^ap, it would be helpful. We don*t remem- 
ber to look for safety caps when we ate shopping; it's after we get 
home that we are aware of it. So, it would be worthwhile to find a 
way t<i remind shoppers of safety closures through clearly visible 
package statements, because we often forget, when we are shop* 
ping, that v/e need to make a conscious choke between safety and 
nonsafety packaging. 

Senator Kasten. That's interesting. Thank you. We are not going 
tc have time for questions because o( the tin^ omstraints we are 
under, but your comments were interesting. We have been talking 
about whether or not the Consumer Product Safety Conunission 
and other agencies are putting too many resources into problems 
and not enou;;h into rufermuiing. They are not working the ruW- 



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92 

making as v^cH as they~I should say as often as they have in the 
past and it's a qutv^tion as to whether there is more rulemaking 
and not as many recaiu.. That's something we might come back to 
you on in terms of suggestions for questions end comments and 
written testimony. 

Dr. AcKERMAN. It's often a shock to college students that the 
msuor way recaU information will reach them, if it's not a car, is 
going to be a public service announcement or some other mass 
media publicity— if the broadcaster or pai«r or magazine chooses 
to print it. So, it's easy to mi^ the recall notice even if you have 
the product. 

Senator Kastkn. LeA me thank you, each of you, for joming us. I 
am particularly pleased to learn a little bit more about safety 
seats. 'That, of course, is getting to us in Washington. I would like 
to thank all of the members of this panel and ask now that Mrs. 
Margaret Ziamik and Mrs Jane Jansen come forward. 

Mrs. Z;amik is the first witness from the Division of Health, De- 
partment of Health and Human Services, Madison, WI. 

STATEMENT OF MARGARET E. ZIARNIK. DEPUTY. SECTION OF 
ENVIRONMENTAL AND C»IRONIC DISEASE EPIDEMIOLOGY, DI- 
\ ISlON OF HEALTH. DEPARTMENT OF HEALTH AND HUMAN 
SERVICES 

Ms. ZiARNiK. Mv name is Meg Ziamik. I'm here for information- 
al purposes only for the division of health. The purpose of this tes- 
timony is to demonstrate that iiyury prevention is an overlooked 
priority area for public health pr<^ramming nationally and to offer 
alternatives that are being held within Wisconsin, specifically in 
child injury control. 

Imagine a disease cat<^ory that accounts for the greatest cause 
of both morbiditv and mortality in persons between the ages of 1 
and 45. It is the fargest single reason for physicial visits and results 
in a societal cost estimated at more than $8J^ billion per year. 
Cancer? Heart disease? No, surprisingly, the category is injuries. 
Unfortunately, along with widespread underestimation and misun- 
derstandii.gs of the impact of injuries in our health and economy, 
there has oeen a low priority assigned to Governmental and pri- 
vate initiatives designed to clarify and eliminate the circumstances 
of injury. 

Injuries are defined as those damages resulting from acute expo- 
sure to physical and chemical agents. C3ommon causes include vehi- 
cle crashes, falls, burns, poisons and drownings. The measurable re- 
{/t>r<. ussions of injuries on death, disability and health care exj^ndi- 
tiire.s i.s enormous In Wisconsin injuritw account for about 2,(K)0 
deaths per year and amount U> 5 percent of all the deaths in the 
State Alx)ut 50 percent of all unintentional injury deaths are not 
ansociated with motor vehicles. Injuries are the leading cause of 
death in th*? first four decades of life. 

Death data repn*sent8 only the very tip of the iceberg for injurv 
.itatistics. For example, studies have shown that for every death 
due to injuries among children under U> years, there are 44 hospi- 
ta'i/ationw and 74<^ visits to the emergency room. About HO p«'rcpnt 
of all nonfatal injuries are not aasxKiated with motor vehickn* 



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^lecifkally relating to nuMiiidity and minlBlity related to chil- 
dnm » evm nuMre stag^erii^ wing diildhood, injuries mcount 
for more deaths than the next nine kradii^ causes of drath com- 
bined. 

Senator Kashdn. You say the next nine? 
Ms. ZiARNiK. Yes. 

Senator Kastbn. That to an intmestif^'StatMU^ 

Ms. ZiAKMiK. Caiifaihood ao^ients do not jmt happen. They are 
caused 1^ Hm interac^m of msceptflble duMrra wiitli a hasaidous 
envinmment The inevitfldriUty of the reralting adr event can 
be altered 1:^ preventum of the accident dreumrtaA imrtcctian 
o£ the individual and the redu^ctkm <^ the inverse C(ai»..iueni»8 of 
the ca^ialty. 

The Childhood Injury Control Program within the W. di- 
viEmm health add iuMMiofl thoe» Uiree commiMmta of injury present- 
ed provKH^. Hie divmkm of Iwahh is devt^moing a omununity- 
besed linme Hazard RediHitiim Ptqgrani an»l wm al^ 
our existing Child Ptesrager Safety Pkoffram which Dr. Nidid was 
taking idxrat bi^cwe. 

The oommuni^ baaed Home Hasard Reduction Program affiacts 
high riflA: areas m nnc^ect communities which wiU be dia^ and 
then impectM>n8 d iKnaes will be mmie. llie lunEirAs are thou re- 
ported and corrective meanues are iqqplM through parmtal edu- 
c&tiioa and maybe evm installatiwi of the aaie^ devices aikl correc- 
tiim, if amvromiate^ in building coAok 

The Uuld Paasenger Safety Pkogram h^ been with the dividon 
of h^th jfcnr the leaA 2 yearsw We are vmder oontoi^ with the De- 
partment of T^anqMjrtaHan. f^sooiain b > a lew man&rting car 
seats or restraints to be otUiaed for daOL to tfa« year of 4. We 
have an Infant Gar Seat Program in evcvy city with the matemi^ 
service. In the last 2 years we have also imfdemented 20 new Tod- 
dle* Car Seat Pragrsnut. 

Our initiative over the moA 2 years will be to incitsaoc the Tod- 
dler Car Seat Program to imlwie efvnry cmmtr^ thm e^iM^^iing a 
statewide netwnrk <rf'Toddktr Gar Seat Roital Progran». 

While these are tmly two ^ypes of examples dt pn^rams that 
would be developcMl betwem tSm Inoad based injury prt^pram, I 
wcmld also like to infinrm you that requ^it for pro^oeak for the 
1985 internal child hmSth hhek aiul the mevraitfam hhds, went oat 
to potential recipients on Friday. In it it b» identified as a priority 
injury prevention so we are expectii^ a nundwr of grants oraoing 
back from that. I have IRn- your perusal the Develiqnng Oiild Intor- 
prevention Programs which came out of the center for disease con- 
trol and also one of my staff haa dev8l<qied an iojary paper which 
is called Riding the Third Wave of Public Health. 

Senator Kasten. Meg, we thank ymi vnry miKh for jnmr testimo- 
ny. 

Next is Jane Jansen ^liio is an assatant administrator of die Di- 
vision of Trade and Consumer Protect»m at the Department of Ag- 
riculture. My notes, Jaoe, say that you are to be acconpanied by 
Julia Dolphin. However, I see you decided to testify fay yourself. 
Ple^e go ahead, Jane. 



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STATEMENT OF JANE M. JANSEN. ASSISTANT AOMINISTRATOR. 
TRADE AND CONSUMER PROTECTION DIVISION. WISCONSIN 
DEPARTMENT OF AGRICULTURE. TRADE AND CONSUMER PRO- 
TECTION 

Ms. Janssn. The Deiiartment of Agricuiture, Trade and Con- 
sumer Protection is the agen^r chaxf^ed by the Wisconsin Legisla- 
ture with product safety iurisdiction under the following sections eC 
the Wisconsin statutes: Hazardous Substance Art, flammable fob- 
ncs, product safety and packaging Standards, and Poison Preven- 
tion. 

Our statute entitled "Product SaSetf' section 100.42, covers toys 
m Its defmition of consumer product While the procedures our 
agency must follow under this law are not nearly as cumbersome 
as those the oonmmier product safety commission must follow in 
order to remove a toy from the market, th^are nevertheless time- 
consuming. However, the drafters of our Wisconsin laws in what 
may well have been recognition of the problem in the Federal laws 
that the Toy Safety Act of 1984 is defined to correct, specifically 
included toys and other articles used by children in the definition 
of hazardous substances induded in our section 100.37. We have 
further implemented this legislation by adoption of Wisconsin ad- 
ministrative code, section Ag-72.05, in which we have set forth var^ 
ious flaws that by definition make a toy hazardous under section 
1(W.37. 

As a result of this farsighted inclusion of toys in our secti<m 
100.37, our agency cannot only summarily ban the sale of unsafe 
toys, a procedure far more cumbersome than it i^nmds, we can also 
issue holding orcteis on substances, including toys, when we have 
reasonable cause to believe that the sub^ance is In violation of sec- 
tion 100.37 and Ag-72, or that the substance poses an imminent 
hazard to public health and safety. These holding orders prohibit 
the sale or movement of the sub^ance in question for up to 14 
days. If, during this period, analysis or exaramation bears out the 
preliminary Hitdings that the substance is hazardous within the 
meaning of the law, then the product may be suteequently dis- 
posed of only as authorized by oar agency. Such a finding is ap|?eal- 
able, of course, but the appeal does not stay the holding order. 

This statutory authority enables our agency to remove an unsafe 
toy from the market promptly, thereby greatly reducing the danger 
of chJldren being hurt. It gives us some breathing room to invoke 
the various adminbtrative procedures necessary to effect a imn on 
the sale of the product and, where appropriate, recali a product al- 
ready sold. 

Our department has made good use of this authority in our con- 
tinuing; work for the safety of the people of Wisconsin. We have 
been assisted and encouraged in our work by the Consumer Prod- 
uct Safety CommitKion's Chicago r^-giona! office. ReceiiUv, cKjr con- 
tact with CPSC has been further developed through rx contract in- 
volving follow up of substantial hazards in the State. 

As a result, som 50 products have bet!n reviewi?ad in conjunction 
with events surrounding their use. Approa^imaiely 20 percent of 
these products have been tojrs or involved injuries to cnildren in 
their use. What we have normally looked on as a cooperative effort 



98 



95 

lu» been enhanced thrm^ the fkmnalizat^ of the l^te-Federal 
reiati<ni8hip in panRiiiig our eoBamm intera^^ 

While we are quite sati^iad with our own authority to deal with 
un^e t<^ we are only one State. Acting in concert with the 
CPSC magnifies our c^ertrmma If we act i^ainst an unsafe toy, 
and remove it from the marketnlaoe, we must then remain con- 
stantly vigilant to make sure the t^y does not enter our State 
through some otuer rfM»nt»«l rfdirtribut fa n. 

We «b> irot have the stcJf resooroes to perform this omstant sur- 
'veillance. The pnqjer sdutkm to thki |MidUem is a Federal solu- 
Uon—to remove the toy from the cfaannels <rf intmtate oommeice. 
The Toy Safety Act <^ 1984 is oon^stmit with Wisconsin law and 
would give the consumer product safety oommisBion the «iforce- 
ment tools it neecb to do ite job in a tixroly nmnn^r. Tl wrefore , we 
support it 

Senator KAarat. I thank both of you ftv your testimony. Al- 
though it didn't come up, I iust wanted to mak each of you if you 
have any experience with the aee labeling issues, and if you do 
have anv experience, if you could ji»t orieday give us a couple of 
ideas. It's not part of the legislation, but iTs tatmgfat up almost 
every time child experts ge^ together. Do either of you from yc^-r 
vtewpoints have any omnmoits on the lidbe^ing qiKstitm? 

Ms. Jansen. I would say yes, that it is an area that we have con- 
stant exposure to in that, of ooniae, every parmt thinks their child 
is advanced and will buy a toy that is porfaaps not even within 
infant age limits. 

If we could see M)me advancement as far as the reason for that 
label so parents or concerned adults who purchMe toys will under- 
stand why it is reoommended for a eartam mm group. You really 
could do a lot (rf* good tm the OMraumers in Wk»mnui and mrroas 
the Nation. 

Senator Kastkn. Meg, do you have any special comments? 

Ms. ZiARNiK. Well, the fa«areau of community health and provm- 
tion doem't actually get invohed in any toy safety. I do bel^ we 
would obviously supf rt the age labelmg. The one thing that we 
are involved in, though, oi course, » the iwcki^png ar^ and we 
would also support any changes in that legislation m actuaUy get^ 
ting some way of getting amne inspection. If nothing else, just gro- 
cery stores, drugstores, ttmt wouki actually have Uie 2»iot«;Uve poi- 
sons for children on their didlvea. 

Senator Kastkn. I thank you. That amcludes Oiis panel. I don't 
believe that there are any oOmr witiMSses in the room. On behalf 
of the subcommittee, I'd like to thank all of our panelists today for 
their testimony. As I said earlier, we are looking forward to pass- 
ing this legislation expeditiously, hqpefully so that we will be able 
to have this whole sy^em in i^boe by the Christaaas i^Iii^ season. 
I thank you again. The meeting is aiHourned. 

[Whereupon, at 3:47 p.m., the hearmg wi» adjourned.] 

[The following information was subsequratly received for the 
r^ord:] 



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96 



Statemknt <fv G^LD Thain« Pm^rEsmm^ Univeroty w Wiscxinbin Law Scf«x>t, 
ON BsHAtr or the Cmrm Pubuc RBPRKSEirrATiON 

The Center for Publk Representatim b a oon-finrfit puUic inters law firm 
which proFvides advocacy for imnmwnted and ynderr^pr^ented gnm|» iM^ore 
legblative« mfnuiu^rative and judidal bodies. The Center hm a history of 
advocating more eKtensti^ protection (mr cmsuniers harmed by the producta tl^ buy« 
including children harmed <Mactive or daiw^tous t^ In this ^otement, the 
Center will exfHress its vfews m to5f safety in graeral and the Toy SalHy Act at 1984 in 
particular. 

Under current law, the Ommimer Product Safety Cmimraslon (CPSC) has the au- 
thority to directly recall most products intended for use by adults. Yet^ when it at- 
temps to recall toys and other artkles intemled fw isse by diildren, it is faced with 
choofsing between two equally burdensome and ^ipi| yfcgttt^;*^ course o( action 
The more e%pediti<ms erf" thew two ^rnm (whidi^fl^ien takes fnrni four to four- 
teen months^ requires the CPSC to trailer its reigulatory function from the Federal 
Hazardous Substances Act to the O^rmmier Product Safety Act By the time author^ 
ity m established, many more childrm may have bem harmed. 

The Center su^iorts tlw Toy Safety Act l^. By abdUiing the "tranfer" rule, 
the Act will eliminate many of the unneoes^ry and unremmaoie delays in rmiov- 
ing harmful playthings from the market The changes fn^osed by the Act make 
both adminif$trative sense and ommion B^t&e. There is no re^tm the Comumer 
Product Safety Commission should mR en^joy at least tl^ same power to directly 
itcbII toys and other articles intefl^led fm* use by children that it currently hfi» to 
recall items used by ^ulta Hi^ change Im^ omdue. 

There are. however, other a^iecta of toy safety which mav be beyond the scope <wr 
intention of S, 2650, but which mmethetess remain in need of attention. For exam- 
ple» harmful toys which cmiM be sut^^ to recall umfer the Act are ^ned s» those 
which contain a "defect" The Cmter would prefer that federal law not require that 
there be a specific "defecf* in a t<^ to aUow fm- its recall. It seen»s» tlmt a toy couM 
well be harmful or just f^in dan^mms, and yet not have a part^lar "defect"* 
that coukl be as readily articulated and estaMtehed as the inherent dat^^r in ita 
use Son^ state statutes e.g., Wis. Stat ss. 100.42 iS) and i4n recognne ihm dte- 
tinction by explicitly altowing f<Mr the recall of dangerous products, in Wisconsin, 
thii^ provittion has been succesirfuliy utilised in the pwL 

In summary, the Center supports the Toy Safety Act <rf 1984 and its goal of 
making the toy recall process less cumbereime. Althm^ other chai^ in tha area 
may ultimately be worthy of considerattm, S. 2650 does piwide importrant protec* 
tton» m»t found in preHent law. 



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